Yickvi Realty Pte Ltd v Pacific Rover Pte Ltd

Chan Sek Keong CJ (delivering the grounds of decision of the court):

[1] This was an appeal against the decision of the High Court in Originating Summons No 1338 of 2008 (“OS 1338/2008”) declaring that the appellant, Yickvi Realty Pte Ltd (“Yickvi”), was not entitled to an injunction to restrain the respondent, Pacific Rover Pte Ltd (“Pacific Rover”), from realigning a road (“the original road”) over which Yickvi has a right of way (“the right of way”) (see Pacific Rover Pte Ltd v Yickvi Realty Pte Ltd [2009] 2 SLR 1148 (“the GD”). The original road and the proposed realigned road (“the realigned road”) are shown in the site plan annexed to these grounds of decision.

[3] Yickvi is the owner of Lot No 99500X of Town Subdivision 28 (“the Dominant Land”). Pacific Rover is the owner of Lot No 832N of Town Subdivision 28 (“the Servient Land”). The original road provides access to both the Dominant Land and the Servient Land from Newton Road. Yickvi became the owner of the Dominant Land sometime in 1997. Pacific Rover became the owner of the Servient Land in 2007. Pacific Rover and Yickvi are both real estate developers and written permission from the relevant authorities has been granted to:

(a) Yickvi to erect a block of 11-storey residential apartments, comprising ten units, on the Dominant Land; and

(b) Pacific Rover to erect two blocks of 30-storey residential buildings, comprising 152 units, with a basement carpark, swimming pool and communal facilities, on the Servient Land.

[4] The right of way was initially granted by the previous owner of the Servient Land to the previous owner of the Dominant Land by an indenture dated 11 May 1903 (“the 1903 Indenture”) with the right to “pass and repass with or without horses bullock carts carriages and motor-cars of all descriptions”. At that time in 1903, the Dominant Land and the Servient Land had only one house erected on each. The right of way was similarly described in a later indenture dated 24 April 1941 (“the 1941 Indenture”). By an Order of Court dated 21 February 1983 made in Originating Summons No 512 of 1981 (“the 1983 Order”), the High Court declared that the plaintiff therein (one Heng Kwee Cher, who was then the owner of the Dominant Land) was entitled to the enjoyment of the right of way. When Yickvi purchased the Dominant Land in 1997 (see [3] above), it became entitled to the enjoyment of the right of way.

[5] The original road divides the Servient Land into two parts. The greater part of the Servient Land lies to the west of the original road and, when purchased by Pacific Rover in 2007 (see [3] above), contained the residential buildings of an old 126-unit development known as Elmira Heights. The smaller part of the Servient Land, lying to the east of the original road, which is in the shape of an inverted “C” (“the inverted C-shaped portion”), was occupied by the two tennis courts of Elmira Heights.

[6] To maximise the plot ratio and the use of the Servient Land, Pacific Rover, on the advice of its consultants, proposed to realign the original road so that it would follow the shape of the inverted C-shaped portion of the Servient Land as shown in the site plan annexed to these grounds of decision (see also [5] above). This would allow Pacific Rover to develop the Servient Land as one undivided piece of land. This would also mean that the route of the right of way would have to be realigned to follow the realigned road leading to Newton Road.

[8] As a result of this disagreement, Pacific Rover commenced OS 1338/2008 and sought the following alternative orders in the High Court:

[9] On 11 February 2009, the High Court, relying on the decision in Greenwich Healthcare National Health Service Trust v London and Quadrant Housing Trust [1998] 1 WLR 1749 (“Greenwich”), made the following declaration and orders (“the High Court’s Order”):

Yickvi appealed against the High Court’s Order on the ground that the judge was wrong to rely on Greenwich which, it contended, was a sui generis case.

[10] In Greenwich, the plaintiff, Greenwich Healthcare National Health Service Trust, had acquired land which included a road connecting it with the public highway in order to build a hospital. Planning permission had been granted for the development subject to a condition that a new link road and a new junction with the public highway be completed before the hospital could open. In order to comply with that condition, the plaintiff needed to realign the road over which all but one of the defendants had rights of way. The land was also subject to a restrictive covenant limiting its use, to the benefit of which all the defendants were or might be entitled. The plaintiff could not proceed with the development unless and until it was established that the defendants could not, once the plaintiff had commenced the development and entered into commitments relating thereto, seek to challenge the plaintiff’s right to proceed. The defendants, though fully informed of the plaintiff’s proposals and invited to object and participate in the proceedings, did neither of these things, but neither did they give their unequivocal and irrevocable consent to the development proceeding. The realignment of the road would improve the safety and convenience of access to the public highway, such that no reasonable objection could be made to it. Because of the plaintiff’s concern that at some future date the defendants might object to the realignment of the road or to the changed use of the land, the plaintiff applied for declarations that it was entitled to realign the road and that the defendants were not entitled to an injunction to restrain the proposed realignment but that their rights, if any, were limited to an award of damages in respect of any interference with the right of way or a claim for compensation in respect of any breach of the restrictive covenant.

[11] Lightman J held that even though the servient owner had no right to unilaterally alter the route of an easement, the dominant owners were not entitled to injunctive relief, and that their remedy, if any, was limited to an award of damages. He said at 1755:

[12] In the present case, the judge held as follows (see [8]– [12] of the GD):

(a) Although the realigned road would not be relatively straight when compared with the original road, Yickvi had not complained that it would cause a major inconvenience to the residents of its development or pose a greater danger to safety.

(b) Yickvi’s “real concern” that the route of its right of way together with the location of its subterranean service installations should remain unaltered for convenience of maintenance and repair, was met by Pacific Rover’s agreement, for itself and all its successors in title, that Yickvi would be allowed reasonable access to maintain such subterranean services.

(c) Although Yickvi wanted a period longer than Pacific Rover’s suggested six months to lay cables, pipes and other installations under the original road, it did not elaborate as to why and on how much more time it needed.

(d) Yickvi did not argue that its enjoyment of the right of way over the original road extended to the right to lay the subterranean service installations under the original road.

[13] In these circumstances, the High Court held that Yickvi was not entitled to injunctive relief to prevent Pacific Rover from realigning the original road as it was (see [9] of the GD):

[14] At the hearing before us, counsel for Yickvi contended that Pacific Rover had no unilateral right to alter the route of Yickvi’s right of way, and that Pacific Rover’s proposal to do so would amount to an actionable interference with the right of way for which Yickvi was entitled to an injunction. He sought to distinguish the decision in Greenwich ([9] supra) on the ground that it was decided primarily on the basis that there was a public interest in Greenwich in not preventing the realignment in order to facilitate the building of a hospital. It was argued that there was no public interest element in the present case as the dispute concerned the private rights of two private commercial owners in two private properties. The realignment was only for the sole convenience of Pacific Rover even though Yickvi might not be unduly inconvenienced in the alteration of the route of the right of way.

[15] We disagreed with counsel’s submission that there was no element of public interest in the present case. In our view, there were two elements of public interest in the present case. First, because of the scarcity of land in Singapore, land should be allowed to be developed to its optimal potential as permitted by planning law and the claimant suffers no injury or inconvenience as a result. In the present case, the competent authority had already given Pacific Rover permission to realign the original road and, in our view, it was not reasonable on the part of Yickvi to deny Pacific Rover the opportunity to do so when it would not suffer inconvenience from the realignment of the original road. Yickvi would continue to enjoy a right of way over the realigned road. In fact, Yickvi would stand to benefit from the realignment as it would be getting a right of way over a new road leading to Newton Road. Otherwise, Yickvi would have to incur more expenditure in having to redevelop the original road to cater to the needs of the occupiers of its new development that might arise from the substantially increased usage as a result of the new development on its plot.

[16] The second public interest element discernible from the facts of this case was the avoidance of more litigation over Yickvi’s right to enjoy the right of way that might arise should the injunction be granted. The circumstances in which the right of way was granted to Yickvi’s predecessors in title have changed dramatically since 1903 when it was first granted (see [4] above) and this might affect the degree to which it could be enjoyed by the purchasers or occupiers of the apartments under construction by Yickvi. The right of way was granted only for the enjoyment of the occupiers of one residential house on the Servient Land. But, with the completion of Yickvi’s development, at least ten households (as compared with the original single household) would now be entitled to enjoy the right of way. This could constitute excessive use of the right of way not contemplated by the grant (see this court’s decision in Lee Tat Development Pte Ltd v MCST Plan No 301 [2009] 1 SLR 875) and might lead Pacific Rover, by way of retaliation, to commence proceedings to restrain Yickvi and its purchasers and/or occupiers from such excessive use.

[17] Another consideration was that Pacific Rover might be legally entitled to stop Yickvi from locating its subterranean service installations under the original road, unless Yickvi was given the right to do so by the relevant planning laws. At common law, a right of way over a road does not entitle the dominant tenant to use the road other than as a means of overland access. There was therefore a possibility that Pacific Rover might be able to retaliate against Yickvi’s obstructive actions, by seeking injunctive relief to restrain Yickvi. Whatever the legal position might be in this respect, it was clear to us that neither party could gain from the status quo. There was a real possibility that granting the injunction would lead to more litigation, resulting in a delay to the completion of Yickvi’s own development. Under the new arrangement where Pacific Rover is permitted to realign the original road, both parties would benefit from the expeditious and optimal development of their respective properties.

[18] We should add by way of a postscript that Greenwich ([9] supra) is not a sui generis case and the principle in that case is not confined to one where the public interest requires that an injunction be refused. In Crane Road Properties LLP v Hundalani [2006] EWHC 2066 (Ch), Charles Aldous QC said at [103]– [105]:

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