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Landmark Court Of Appeal Decision On Right Of Way
September 2009 | Real Estate Litigation | Litigation & Arbitration | Litigation Brief

Introduction

For the first time, the Singapore Court of Appeal has decided that a land owner may realign a right of way under certain circumstances. The Court of Appeal affirmed the decision by the High Court to grant an anti-suit declaration sought by the land owner.

Case Facts

In Pacific Rover Pte Ltd v Yickvi Realty Pte Ltd [2009] SGHC 63, the plaintiff, Pacific Rover Pte Ltd ("Pacific Rover"), was the owner of a property (the "Servient Land") in the Newton area. The defendant, Yickvi Realty Pte Ltd ("Yickvi"), owned the neighbouring property (the "Dominant Land").

Yickvi had a right of way that cut through the Servient Land. Pacific Rover was redeveloping the Servient Land, while Yickvi was developing the Dominant Land. Pacific Rover wanted to realign the existing right of way to maximise the plot ratio and use of the Servient Land. Such realignment was unlikely to cause any inconvenience to Yickvi.

Pacific Rover requested Yickvi's approval to the realignment but the negotiations were unsuccessful.

Pacific Rover, represented by Ling Tien Wah, Norman Ho and Joseph Lee of Rodyk & Davidson LLP, filed an application to seek a declaration that the proposed realignment would constitute no wrongful interference with the right of way. Alternatively, Pacific Rover sought an anti-suit injunction against Yickvi on the grounds that Yickvi would have no right to injunctive relief against Pacific Rover in respect of the proposed realignment.

The High Court and Court of Appeal decisions

The High Court granted the anti-suit injunction against Yickvi. The learned judge thought it wrong to deny Pacific Rover the full use of its property just because of Yickvi's existing right of way when there was an available alternative which did not substantially affect the enjoyment of such right of way.

Yickvi appealed to the Court of Appeal. On 28 July 2009, the Court of Appeal dismissed the appeal based on the unique facts of the case. The Court thought that, as both parties were redeveloping their respective lands, the issue of inconvenience caused by the realignment of the right of way was not a real issue. Further, the right of way was originally granted for a single dwelling house, which Yickvi was now redeveloping into a 10 unit 11 storey development. The 10 fold increase in the volume of traffic from Yickvi's development would amount to a change of use of the right of way, thus giving Pacific Rover certain remedies against Yickvi.

In the circumstances, as both parties would benefit from the realignment of the right of way, the Court of Appeal dismissed Yickvi's appeal and affirmed the High Court's anti-suit injunction against Yickvi.