Xpress Print v Monocrafts SGCA [2000 ] 2 SLR(R) 0614 PDF

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Xpress Print Pte Ltd v Monocrafts Pte Ltd and another [2000] SGCA 37 Court of Appeal — Civil Appeal No 202 of 1999 Yong Pung How CJ, L P Thean JA and Chao Hick Tin JA 26 April; 24 July 2000 Land — Easements — Rights of support — Whether right extends to building on land — Whether distinction between land in natural state and land with building on it valid — Whether distinction between registered and unregistered land valid — Whether landowner under duty to use property in manner as not to injure that of another — Whether adjoining landowner under duty not to excavate land without first securing alternative means of support — Whether duty can be delegated Facts The appellant owned a plot of land on which stood its industrial building. The first respondent owned the plot of land adjacent to that of the appellant’s and decided to build an industrial building on that piece of land. The second respondent (“the contractor”) was engaged to construct the building and it erected a temporary retaining wall between the two plots of land to hold up the soil on the appellant’s plot. After excavations on the first respondent’s land began, the appellant discovered cracks along the driveway of their building, caused by subsidence of the soil under the driveway. The cracks widened and certain water pipes underneath the driveway burst, interrupting the appellant’s water supply. Although the first respondent and the contractor were informed of this and emergency repairs were carried out, the excavation works continued and this caused the water pipes to burst on two more occasions. It was ascertained that the soil subsidence and the consequent damage to the appellant’s property had been caused by the inadequacy of the retaining wall that the contractor had erected and the contractor’s failure to follow the design provided by the first respondent’s engineer. Subsequently, despite repairs to the retaining wall having been made, the appellant continued to suffer further soil subsidence and damage to their property as the construction of the first respondent’s building proceeded. The appellant later commenced the present suit against the first respondent and the contractor for damages and loss suffered as a result of, inter alia, wrongful interference of support and nuisance by the two respondents. At trial, the appellant’s primary submissions were in respect of the claim under the right of support. The trial judge held that a right of support extended only to what was naturally on the land, and not to buildings constructed on the land. The claim was thus dismissed together with the other claims. The appellant appealed. Held, allowing the appeal: (1) On the issue of right of support, there was no legal principle supporting the distinctions drawn between land in its natural state and land on which a

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building had been erected; and as between registered and unregistered land. The proposition that a landowner might excavate his land with impunity, without regard to his neighbour’s building and property, was inimical to a society which respected each citizen’s property rights and could not be supported: at [37]. (2) The Latin maxim sic utere tuo ut alienum non lœdas, which meant: to use your own property in such a manner as not to injure that of another, encapsulated the true legal justification for the right of support. On the basis of such legal principle, there was no good reason for imposing the 20-year gestation period for a right of support in respect of a building. Consequently, the principle operated to give a landowner a right of support in respect of his building by neighbouring lands from the time such building was erected: at [48] to [50]. (3) The imposition of a strict duty on landowners did not create a new legal right, but merely removed unjustifiable restrictions on a right already firmly established and accepted. The enlarged right had exactly the same characteristics as the “original” right of support which operated only in respect of land in its natural state. This was not a right to have adjoining soil remain in its natural state, but rather a right to support from the adjoining soil, which then translated into a correlating duty of the adjoining landowner not to cause damage to his neighbour’s land by excavating or otherwise removing his land without first securing alternative means of support. The right was infringed as soon as, but not until, damage was sustained in consequence of the withdrawal of that support: at [51]. (4) In the premises, the first respondent was under a duty to support the appellant’s property, including any building on it, and such duty was breached when it caused its soil to be removed without sufficient alternative means of support. It did not matter that the damage was in fact caused by the wrongful acts of the contractor. The duty lay on the landowner and it could not be disposed of by delegation: at [52] and [53]. Case(s) referred to Bognuda v Upton & Sheare Ltd [1972] NZLR 741 (refd) Bonomi v Backhouse El Bl & El 622; (1858) 120 ER 643 (refd) Bower v Peate (1875–1876) 1 QBD 321 (refd) Charles Dalton v Henry Angus (1880–1881) 6 AC 740 (not folld) Fyvie v Anand 1994 NSW Lexis 13219 (refd) Hicks v Lake MacQuarie Pty Ltd 1992 NSW Lexis 6983 (refd) Lee Quee Siew v Lim Hock Siew (1895–1896) 3 SSLR 80 (not folld) Lim Hong Seng v East Coast Medicare Centre Pte Ltd [1994] 3 SLR(R) 680; [1995] 2 SLR 685 (not folld) M’Alister (Or Donoghue) v Stevenson [1932] AC 562 (refd) MCST Plan No 549 v Chew Eu Hock Construction Co Pte Ltd [1998] 2 SLR(R) 934; [1998] 3 SLR 366 (refd) Trustees of the Estate of Cheong Eak Chong, deceased v Medway Investments Pte Ltd [1996] 2 SLR(R) 607; [1997] 1 SLR 329 (refd) Walker v Strosnider 67 W Va 39 (refd) Wilton v Hansen (1969) 4 DLR (3d) 167 (refd) Yong Joo Lin v Fung Poi Fong [1941] MLJ 63 (refd)

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Legislation referred to Land Titles Act (Cap 157, 1994 Rev Ed) K Shanmugam SC and Edwin Tong (Allen & Gledhill) for the appellant; MP Rai and Gurcharanjit Singh (Cooma & Rai) for the respondents. [Editorial note: This was an appeal from the decision of the High Court in [1999] SGHC 320.]

24 July 2000

Judgment reserved.

Yong Pung How CJ (delivering the judgment of the court): 1 This is an appeal from a High Court decision by Choo Han Teck JC in respect of a dispute between two neighbouring landowners. In the court below, the facts were agreed. Facts 2 The appellants own a plot of land along Kallang Way. On it stands their eight-storey light industrial building named the “Communications Techno Centre”, which was completed in 1996. In one survey report, the building was described as follows: The structures constituting the Xpress Print Pte Ltd building is (sic) an eight storey high tower block situated within an open compound including open car parks, a driveway of trowelled concrete construction and landscape features with a garden area. The building is constructed predominantly on a structural frame of reinforced concrete with brick infill walls finished in sand and cement render.

3 The first respondents own a plot of land adjacent to the appellants’ plot. Early in 1997, the first respondents decided to construct an industrial building of their own on their land, and engaged the second respondents, a firm of contractors named L & B Engineering (S) Pte Ltd (“the contractors”), to do this. In February 1997, the contractors erected a temporary retaining wall between the two plots of land to hold up the soil on the appellants’ plot. They then began excavating on the first respondents’ land to build a basement and lay the necessary foundations for the building. 4 On 10 March 1997, the appellants discovered that there were oneinch cracks along the driveway of their building, caused by subsidence of the soil under the driveway. The driveway was separated from the first respondent’s land by a drain, a grass verge and a fence. The soil underneath the grass verge between the driveway and the first respondents’ land had also subsided. The appellants informed the first respondents and the contractors of this immediately.

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5 The next day, 11 March 1997, the cracks on the driveway widened to about five inches and certain water pipes lying underneath the driveway burst, which interrupted the appellants’ water supply. The first respondents and the contractors were informed of this and the contractors carried out emergency repairs to the water pipes. 6 The contractors did not stop excavating, however, and the water pipes on the appellants’ land burst again on 15 and 16 March 1997. Again, the contractors had to carry out emergency repairs to the pipes. 7 All this while, from 10 March 1997 onwards, the parties had been trying to negotiate a solution to the problem. It had been ascertained that the soil subsidence and the consequent damage to the appellants’ property had been caused by the inadequacy of the retaining wall that the contractors had erected, and, in particular, the contractors’ failure to follow the strutting design provided by the first respondents’ engineer. The question was what should be done to remedy this. The possibility of a compromise was scuttled however by the contractors’ refusal to stop the excavation works and repair the retaining wall, and by the inability of the parties to agree on the preventive measures that should be taken at the time. Eventually, the appellants complained to the Building Control Division (BCD) of the Public Works Department about the situation and a “stop works order” was issued by the BCD to the first respondents on 10 April 1997. 8 On or about 22 April 1997, the BCD permitted the works to continue, but only insofar as they pertained to the repair of the retaining wall. On or about 24 May 1997, the repairs to the retaining wall having been completed, the BCD gave permission for the works to continue. 9 Unfortunately, that was not the end of the appellants’ troubles. Further soil subsidence and damage to their property occurred on 11 June 1997. A complaint was made again to the BCD, who immediately issued a further stop works order. This stop works order was lifted a few days later after a professional engineer engaged by the first respondents convinced the BCD that henceforth all excavation works would be carried out in stages and under strict supervision. 10 On 17 November 1998, the appellants commenced a suit against the first respondents and the contractors for “damages and loss suffered as a result of the negligence, wrongful interference of support and nuisance” on the part of the first and the second respondents. They claimed $574,598.78 for costs incurred so far in dealing with the problem, and other losses yet to be quantified. 11 Before the trial, the contractors were wound up, and the appellants obtained a default judgment against them for failing to comply with various “unless orders” of the Registrar. The suit therefore proceeded at trial against the first respondents only, and they are the only party defending this appeal.

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The decision below 12 In the court below, the appellants’ primary submissions were in respect of the claim under the right of support. The trial judge held that a right of support extends only to what is naturally on the land, and not to buildings or things constructed on the land. He stated in his grounds of decision ([1999] SGHC 320 at [3]): 3 The main thrust of the plaintiffs’ case lay in the claim based on the wrongful interference with the right of support. However, the law is abundantly clear on this point. The right of support extends only to what is naturally on the land. The only exception, which does not apply in this case, is based on the right equivalent to an easement, that is, an acquired right of support by long usage and reliance. In this case, it is an undisputed fact that the plaintiffs’ building was constructed only a year previously. The contrasting rights of adjacent land-owners, namely, the right to do as one pleases on his own land is limited by the right against wrongful interference of support. The plaintiffs have as much right to construct and maintain a building on their own land as the first defendants have to excavate theirs. So long as the excavation is carried out without negligence on the part of the first defendants whether directly or vicariously, and no wrongful act of nuisance was committed by them, they cannot be held responsible for the damage to the plaintiffs’ building only by reason of the expectation of a right of support. That right creates a no-fault liability. Thus, it is restricted to apply only to the support of the natural ground and not to objects constructed thereon. The protection of those objects in law will lie only in negligence, nuisance or the rule in Rylands v Fletcher, none of which assist the plaintiffs as can be gleaned from the sparse pleadings of the plaintiffs. Reverting to their case based on the right of support, the law may be summed up in this robust pronouncement of Lord Penzance in Dalton v Angus (1881) 6 App Cas 740 at 804: It is the law, I believe I may say without question, that at any time within 20 years after the house is built the owner of the adjacent soil may with perfect legality dig that soil away and allow his neighbour’s house, if supported by it, to fall in ruins to the ground. This statement was adopted … in the Court of Appeal in Lee Quee Siew v Lim Hock Siew (1896) 3 SSLR 80, at 90.

13 The trial judge further held that on the facts the claims in negligence and nuisance also failed. He thus dismissed the claim. The appeal 14 Before us, counsel for the appellants, Mr Shanmugam SC, advances two arguments. The primary argument is that the principle in Dalton v Angus (1881) 6 App Cas 740 relied on by the trial judge is no longer good law and should be rejected. He submits that the first respondents are liable

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under common law principles of negligence or nuisance for the damage caused. Mr Shanmugam’s second argument is that the appellants can rely on their right to support of their land notwithstanding that a building has been erected on it, if they can show that the building did not contribute to the subsidence. 15 We consider first the argument relating to the right of support. Mr Shanmugam contends that the principle in Dalton v Angus relied on by the trial judge is an anachronism. Citing a number of cases from Commonwealth jurisdictions in support, he urges this court to adopt a wider jurisprudential basis for imposing a liability on neighbouring landowners consistent with the realities of an urban city. In his view, there should be a duty of reasonable care on landowners who carry out potentially damaging excavation works. Further, this duty ought to be nondelegable so that the fact that the works have been carried out negligently by an independent contractor, and not by the landowner himself, should offer the latter no excuse in law. 16 Mr Rai, for the first respondents, submits that the Dalton v Angus principle is too well-entrenched to be abrogated by this court. In his view, any change in the law is a matter for Parliament. 17 It is necessary to begin by considering the seminal case of Dalton v Angus ([14] supra). The facts of that case were briefly these. The defendant landowner had employed a contractor to excavate his land. In carrying out the excavation works, the adjacent land, belonging to the plaintiffs, was deprived of lateral support. The withdrawal of support caused the plaintiffs’ factory standing on the land, which had been built some 27 years prior to the commencement of the excavation works, to collapse. The plaintiffs brought an action to recover damages for injury to the factory. At the trial, Lush J directed a verdict for the plaintiffs for the damages claimed, but left them to move for a judgment in order to have the questions of law determined. On motion for judgment, it was argued for the defendants, inter alia, that the plaintiffs’ factory was not entitled to the support claimed. On appeal to the Court of Appeal and House of Lords, the primary issue for determination was “whether a right to lateral support from adjoining land could be acquired by 27 years’ uninterrupted enjoyment for a building proved to have been newly erected at the commencement of that time” (per Lord Selborne LC). 18 Before the House delivered their ruling, their Lordships invited no less than seven eminent judges to give their opinions on the matter due to the complexity of the issues thrown up by the case. In the end, the central question was answered in the affirmative by all the members of the House. They held that the plaintiffs had acquired an easement of support in respect of their factory, which had been infringed when the defendant interfered with the support causing damage. Four substantive written judgments were

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delivered by their Lordships, but it is necessary to refer to only three of them here. 19 We turn first to the judgment of Lord Selborne LC. Lord Selborne was of the opinion that the right to lateral support from adjoining land in respect of a building was a right in the nature of a positive easement, which could be acquired by the prescriptive period of 20 years’ uninterrupted enjoyment. In reaching this conclusion, he undertook a discourse on the nature of rights of support in general, including their derivation. He said at 791: In the natural state of land, one part of it receives support from another, upper from lower strata, and soil from adjacent soil. This support is natural, and is necessary, as long as the status quo of the land is maintained; and, therefore, if one parcel of land be conveyed, so as to be divided in point of title from another contiguous to it, or (as in the case of mines) below it, the status quo of support passes with the property in the land, not as an easement held by a distinct title, but as an incident to the land itself … Support to that which is artificially imposed upon the land cannot exist ex jure naturae, because the thing supported does not itself so exist; it must in each particular case be acquired by grant, or by some means equivalent in law to grant, in order to make it a burden upon the neighbour’s land, which (naturally) would be free from it.

20 The second judgment of relevance was that of Lord Penzance. Lord Penzance took the view that, if one were to approach the question afresh from the perspective of pure legal principle, the right of support in respect of buildings could not be acquired by prescription. However, Lord Penzance felt bound by authority to concur in the decision of the other members of the House to answer the question before him in the affirmative. His final position was summarised in the following passages (at 804 and 807): … the matter is not res integra. It has been the subject of legal decisions, and those decisions leave it beyond doubt that such is not the law of England. On the contrary it is the law, I believe I may say without question, that at any time within twenty years after the house is built the owner of the adjacent soil may with perfect legality dig that soil away, and allow his neighbour’s house, if supported by it, to fall in ruins to the ground … … the learned judge asserted … [the plaintiff’s right] to be an absolute right acquired by twenty year’s enjoyment quite independently of grant, acquiescence, or consent. In so doing he relied, he said, upon the existing authorities. I will not recapitulate them or criticise them individually, as they have been carefully reviewed by others. They constitute the existing law on the subject; and I think the learned Judge has drawn what is upon the whole the c...