Elizabeth Wong takes a brief look at Singapore's Court of Appeal's decision in Xpress Print Pte Ltd v Monocraft Pte Ltd & Anor [2000] 3 SLR 545, and its departure from the principle established by the House of Lords in Dalton v Angus [1881] 6 App Cas 740.
The principles of land law are among the oldest and most settled. However, the rationale behind some of these principles is difficult to comprehend and are consequently subject to criticism. Be that as it may, unless such a principle is departed from by way of statutory enactment or case law development, it remains part of the applicable law.
A classic example is found in the decision of the House of Lords in the case of Dalton v Angus [1881] 6 App Cas 740. In this instance, the Court of Appeal of Singapore has made headway in developing the law, and in the process of doing so, has attracted positive commentary from a leading and well-respected text on property law.
The Dalton v Angus Principle
The case of Dalton v Angus has entrenched the principle in England, as well as other common law jurisdictions (including Australia, Canada and New Zealand), that although a landowner has a right to support for his land, this natural right of support extended only to the land in its natural state. Any right of support for buildings and other constructions on the land had to be acquired, if at all, by easement. In that case, however, the House of Lords held that easement rights in respect of buildings could be acquired by prescription if there was a period of 20 years' uninterrupted enjoyment. On this basis, the court decided that the plaintiffs had acquired an easement of support for their building by virtue of their 27 years of uninterrupted enjoyment.
The court's judgment was based on the distinction between 'natural' rights which the adjoining landowner enjoyed in respect of the land and easement rights which he did not enjoy automatically but could acquire in respect of the building on his adjoining land. This distinction is borne out in the following passage from Lord Selbourne's judgment (at pages 791-792):
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 …
[T]he doctrine laid down must, in my opinion, be understood of land without reference to buildings. Support to that which is artificially imposed upon 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.
The principle in Dalton v Angus was affirmed by the Court of Appeal of the Straits Settlement in the case of Lee Quee Siew v Lim Hock Siew [1896] SSLR 80.
Through the years, the case of Dalton v Angus has become well-known for the proposition that 'a landowner may excavate his land with reckless abandon prior to the acquisition of a prescriptive easement' (per Yong Pung How CJ in Xpress Print Pte Ltd v Monocraft Pte Ltd & Anor [2000] 3 SLR 545 at 22). Understandably, the principle adopted in Dalton v Angus has been criticised in subsequent judgments, particularly in the light of construction and development in modern day urbanisation.
Decision in Xpress Print v Monocrafts
The decision of the Singapore Court of Appeal in Xpress Print Pte Ltd v Monocrafts Pte Ltd & Anor [2000] 3 SLR 545 represents a landmark shift from the principle in Dalton v Angus. The court held that the right of support enjoyed by a neighbouring landowner extended beyond the land in its natural state to the buildings erected thereon.
The facts of the case are briefly as follows.
The appellant and the first respondent were neighbouring landowners. As a result of excavation work done by the first respondent on his land for the purposes of construction, the building on the appellant's land, which had been built in 1996, suffered massive damage. The appellant sued for, inter alia, wrongful interference of support, which was dismissed by the trial judge on the basis of Dalton v Angus. The appellants, represented by K Shanmugam SC, Edwin Tong and Prakash Pillai, argued, inter alia, that the principle in Dalton v Angus, established over a 100 years ago and relied on by the trial judge, was inappropriate in the context of urban and heavily built-up Singapore, and should be departed from.
The Court of Appeal had no doubt that the principle in Dalton v Angus had to be rejected. This is made clear in the following passage (at paragraph 37):
[W]e are of the view that the proposition that a landowner may excavate his land with impunity, sending his neighbour's building and everything in it crashing to the ground, is a proposition inimical to a society which respects each citizen's property rights, and we cannot assent to it.
In arriving at this conclusion, the court was of the view that the right of support must have its roots in 'the principles of reciprocity and mutual respect for each other's property' (paragraph 47). In this regard, the court held as follows (paragraphs 48 and 50):
We believe that the true legal justification for the right of support is the legal principle encapsulated in the Latin maxim sic utere tuo ut alienum non loedas, which translates in English to: use your own property in such a manner as not to injure that of another. The importance of that principle is compounded in Singapore in view of our land use pattern, whereby all land available for commercial, industrial or residential purposes is used to a high intensity. The damage that might be caused if landowners were lackadaisical in their excavation works could be astronomical, not to mention the cost in human lives or injury to property …
In the event, we are of the view that the principle in question operates to give a landowner a right of support in respect of his buildings by neighbouring lands from the time such buildings are erected, and we so hold. Lee Quee Siew v Lim Hock Siew is thereby overruled, and any part of Dalton v Angus which is incompatible with this holding should in future not be followed.
Since the Court of Appeal held that the right to support in respect of buildings arises from the time such buildings are erected, the court commented that 'there is scant justification for the 20-year gestation period for a right of support in respect of a building'.
Accordingly, it was held that the first respondent was under a duty not to interfere with the right of support enjoyed by the appellant's property, which included any buildings on it, and they had breached that duty by causing their soil to be removed without sufficient alternative means of support.
Taking the Lead Among Common Law Jurisdictions
The landmark decision of the Singapore Court of Appeal in Xpress Print Pte Ltd v Monocrafts Pte Ltd & Anor has not gone unnoticed outside Singapore. The judgment has received favourable comment by Kevin Gray in the third edition of the leading text, Elements of Land Law for 'spearheading the abandonment of an age-old (and controversial) restriction on the natural right of support for land'. The author said:
Most common law jurisdictions have indicated that the dogmatic restriction of the natural right of support is now over-ripe for reversal by supreme appellate tribunals. The lead has finally been taken by the Court of Appeal of Singapore in Xpress Print Pte Ltd v Monocrafts Pte Ltd & Anor …
It is likely that this enlightened approach, imposing a strict and non-delegable duty on landowners, will now be followed by other final appellate courts.
The emphasis of the Court of Appeal on 'the principles of reciprocity and mutual respect' is also consistent with the modern view subscribed to by writers and commentators alike, that in the urban context, 'property' in land is not autonomous or absolute, but is rooted in mutual restraint and social accommodation.
It is also noted that the stance adopted by the Singapore Court of Appeal, if accepted in English law, would render redundant the prescriptive acquisition of rights of support after 20 years.
Elizabeth Wong
Allen & Gledhill