Putaran Jaya Sdn. Bhd. v Pentadbir Tanah Daerah Johor Bahru (JA-15-42-07/2021)

This is the land reference arising from the acquisition of part of the Land owned by the Applicant HS (D) 547923 PTB 24192 Mukim Johor Bahru (the “said Land”) under paragraph 3(1)(a) of the Land Acquisition Act 1960 [Act 486] for the purpose of implementing the Johor Bahru-Singapore Rapid Transit System Link Project (“RTS Project”) for the Ministry of Transport Malaysia (“MOT”).

After considering all cause papers, the two (2) assessors’ reports, the written submissions and oral submissions of the parties, I have made an adjustment to the market value and awarded compensations as follows:

market value for the said Land at the rate of RM6,600.00 per square metre (“sqm”) awarded by the Land Administrator be maintained;

the sum of RM3,797,640.00 is awarded for injurious affection (“IA”) calculated as below:

balance of land 3,836 sqm x (15% of RM6,600.00) = RM3,797.640.00;

other claims are disallowed;

other awards by the Land Administrator be maintained;

the sum of RM3,797.640.00 shall be paid by the Respondent to the Applicant within three (3) months from the date receipt of the sealed Order and if failed to pay, late charges of 5% per annum on the said sum shall be imposed from the date of issuance of Form K, namely till the date of full settlement;

Respondent to return the deposit of RM3,000.00 to the

the cost of assessor for the Government and private sector shall be RM500.00 each for each session and shall be paid respectively by the Applicant within seven (7) days from this Order.

Below are the grounds of my decision.

The background facts of this proceedings are gathered from the Affidavits and submissions filed by the parties and set out in chronological order.

The Applicant is the landowner of the said Land. Prior to acquisition, the said Land was measured at 5,405 sqm. (approximately 58,179 sqft.). The land now measures 3,836 sqm. (approximately 41,290 sqft.) after the acquisition.

The details of the said Land are as follows: Lot No. Title Land Area Scheduled Land Balance Land Area PTB 21492 5,405 sqm 1,569 sqm (29%) 3,836 sqm (71%)

The said Land is categorised as being for service apartment use only and the planning approval for 342 units of service apartment was granted.

The said Land is located within the central business district of Johor Bahru with easy and quick access to the causeway. There are two

potential points of access to the land being from Jalan Wadihana and Jalan Tebrau. Jalan Tebrau is a 4-lanes highway.

Part of the said Land scheduled was acquired (the “Schedule Land”) for public purpose pursuant to paragraph 3(1)(a) of the Act 486 for implementing the Johor Bahru-Singapore Rapid Transit System Link Project (“RTS Project”) for the MOT.

The acquisition was gazetted on 08.10.2020 under section 4 of Act 486 vide Gazette No. 3794 and it was later gazetted under section 8 of Act 486 vide Gazette No. 151 on 21.01.2021. The valuation of the said Land was made on 08.10.2020.

The Notice of Appeal filed by the Applicant (Enclosure 92 ) states that the Applicant is appealing against the whole decision. However, upon perusing Enclosure 92, it is clear that the appeal is only on the issue of the amount of compensation awarded by this Court.

In the case of land reference, no appeal to the Court of Appeal and the Federal Court can be made for an award of compensation. Subsection 49 (1) of Act 486 provides that— “ (1) Any person interested, including the Land Administrator and any person or corporation on whose behalf the proceedings were instituted may appeal from a decision of the Court to the Court of Appeal and to the Federal Court: Provided that where the decision comprises an award of compensation there shall be no appeal therefrom.”. [Emphasis added]

However, for the purpose of completing the appeal made, I have prepared the grounds of judgment based on the issues that may be raised by the Applicant.

The issues to be determined by this Court are as follows:

whether the market value for the Scheduled Land as awarded by the Respondent is reasonable and justifiable;

whether injurious affection should be awarded for the remaining land; and

whether the Applicant is entitled to claim incidental costs. ANALYSIS AND COURT’S FINDINGS

Whether the market value for the Scheduled Land as awarded by the Respondent is reasonable and justifiable

The Applicant’s claim is based on section 1 and paragraph 2(a) of the First Schedule of Act 486. Subsection 1(1) of the First Schedule of Act 486 defined “market value” for the scheduled land as—

at the date of publication in the Gazette of the notification under section 4, provided that such notification shall within twelve months from the date thereof be followed by a declaration under section 8 in respect of all or some part of the land in the locality specified; or

in other cases, at the date of the publication in the Gazette of the declaration made under section 8.

Paragraph 2(a) of the First Schedule of Act 486 states the following matters to be considered in order to determine the compensation: “2. In determining the amount of compensation to be awarded for any scheduled land acquired under this Act there shall be taken into consideration the following matters and no others:

the market value as determined in accordance with section 1 of this

any increase, which shall be deducted from the total compensation, in the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put;

the damage, if any, sustained or likely to be sustained by the person interested at the time of the Land Administrator's taking possession of the land by reason of severing such land from his other land;

the damage, if any, sustained or likely to be sustained by the person interested at the time of the Land Administrator's taking possession of the land by reason of the acquisition injuriously affecting his other property, whether movable or immovable, in any other manner;

if, in consequence of the acquisition, he is or will be compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change; and

where only part of the land is to be acquired, any undertaking by the State Authority or by the Government, person or corporation on whose behalf the land is to be acquired, for the construction or erection of roads, drains, walls, fences or other facilities benefiting any part of the land left unacquired, provided that the undertaking is clear and enforceable.’ [Emphasis added]

Raja Azlan Shah J (as he then was) in Bukit Rajah Rubber Company Ltd v. Collector Of Land Revenue, Klang [1968] 1 MLJ 168 has ruled that there is no hard and fast rule that laid down the method to be adopted in assessing the proper market value of the schedule land and stated in the following passages: “In my opinion, no hard and fast rule can be laid down regarding the method to be adopted for assessing the proper market value of the land acquired. In the last analysis each case must be considered in the light of its special features. I have considered “evidence on sales of similar land in the neighborhood” and I have arrived at the conclusion that after making due allowance for all peculiar circumstances these sale can only afford assistance in arriving at the proper market value, It is plain that evidence of previous sales of neighboring land can seldom be obtained which shall be precisely parallel in all those circumstances to the sale of the land acquired. Differences, through of varying degrees, must always exist. What precise allowances should be laid down for these differences is not a matter which can be reduced to any rigidity. With regard to expert opinions that were adduced, I would like to lay emphasis on the judgment of earlier decided cases that generally they have very little probative value unless supported by, or coincide with, other evidence. In my view, the market value must be based on a rational enquiry of the value of the property to the owner which is an objective assessment of all the surrounding circumstances. Ordinarily, the objective assessment would be the price that an owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser with whom he was bargaining for the sale of the land. The property must be valued not only with reference to its condition at the time of acquisition but also its potential development value.”’. [Emphasis added]

Buhagiar J in the case of Nanyang Manufacturing Co v. The Collector of Land Revenue, Johore [1954] 1 MLJ 69 defined what is the market value of the land acquired— “The market-value of land may be roughly described as the price that an owner willing, and not obliged to sell might reasonable expect to obtain from a willing purchaser with whom he was bargaining for the sale and purchase of the land.’’. [Emphasis added]

The Federal Court in the case of Ng Tiou Hong v. Collector of Land Revenue, Gombak [1984] 1 CLJ (Rep) 289 has laid down the factors to be considered — “…There are of course other principles that have to be applied according to the facts and circumstances of a particular case along the lines provided by the First Schedule to the Act and as decided from time to time by the courts. We consider the following as the main principles: Firstly, market value means the compensation that must be determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser. The elements of unwillingness or sentimental value on the part of the vendor to part with the land and the urgent necessity of the purchaser to buy have to be disregarded and cannot be made a basis for increasing the market value. It must be treated on the willingness of both the vendor to sell and the purchaser to buy at the market price without any element of compulsion. Secondly, the market price can be measured by a consideration of the prices of sales of similar lands in the neighbourhood or locality and of similar quality and positions. Thirdly, its potentialities must be taken into account. The nature of the land and the use to which it is being put at the time of acquisition have to be taken into account together with the likelihood to which it is reasonably capable of being put to use in the future eg the possibility of it being used for building or other developments. Fourthly, in considering the nature of the land regard must be given as to whether its locality is within or near a developed area, its distance to or from a town, availability of access road to and within it or presence of a road reserve indicating a likelihood of access to be constructed in the near future, expenses that would likely be incurred in leveling the surface and the like. Fifthly, estimates of value by experts are undoubtedly some evidence but too much weight should not be given unless it is supported by, or coincides with, other evidence. The safest guide is evidence of sales of similar lands of similar quality or position in the locality at or prior to the time of acquisition. The prices paid for such sales can be used as comparables subject to making allowances for all the circumstances.”. [Emphasis added]

It was undisputed fact that the method of valuation adopted by the parties is the comparison method that is the approach taken to analyze recent sales of similar and comparable land and making adjustments for differences in character, locality, potential, terrain, accessibility, size, shape of land and any other relevant factors.

In determining what amounts to a good comparable in arriving at the market value of a property, the Federal Court in the case of Collector of Stamp Duties v Ng Fah In & Ors [1981] 1 LNS 107 has made reference to the following passage quoted in LAO v Venkateswami (1967) 1 An WR 79: “The underlying principle of fixing the market value with reference to comparable sales is to reduce to the minimum the element of speculation. In a comparable sale the features are:

It must be within a reasonable time of the date of notification.[in our case, the date of the transfer];

it should be a bona fide transaction;

it should be a sale of the land acquired or of the land adjacent to the land acquired; and

it should possess similar advantages. It is only when all these factors are present that it could merit consideration as a comparable sale.”. [Emphasis added]

As decided by Wan Yahya J in the case of Ong Yan & Anor v. Collector of Land Revenue, Alor Gajah, Malacca [1986] 1 MLJ 405, the burden is on the Applicant to prove by way of prima facie that the award of the Respondent is inadequate and has stated the following passage: “In land acquisition cases the burden is on the applicant to make out a prima facie case of inadequate award. Only when he succeeds in doing so would the respondent be called upon to introduce his evidence; otherwise the applicant’s case must fail and the Collector’s award should stand.”. [Emphasis added]

Subparagraph 2(1), First Schedule of Act 486 provided that the Applicant’s valuer report by itself is a prima facie case as to the value of the said Land as claimed by the Applicant.

I refer to the case The Royal Selangor Golf Club (No. Syarikat: 351- D) v. Pentadbir Tanah WPKL [2021] 1 LNS 1707 where the High Court decided as follows: “[8] It is important to emphasize that the burden of proving any claims should be discharged by the applicant. In other words the applicant must show that the compensation awarded by the land administrator for the compulsory acquisition of the Land in inadequate. This was recently reaffirmed by the Court of Appeal in Pengerang Farm Sdn. Bhd. v. Pentadbir Tanah Daerah Kota Tinggi [2017] MLJU 214, in the following terms: “[11] Notwithstanding the aforesaid, the applicant is asking for judgment on its claim for compensation. In law, the party who desires the court to give judgment as to any legal right or liability bears the burden of proof (s. 101(1) of the Evidence Act 1950). The burden of proof on that party is two fold:

the burden of establishing a case; and

(ii) the burden of introducing evidence. The burden of proof lies on the party throughout the trial. The standard of proof required of the claimant is on the balance of probabilities”. [9] In this regard pursuant to paragraph 2(1) of the Third Schedule to the LAA, the case of the applicant is thus predicated on the valuation report of the private valuer to establish a prima facie case as to the value of the Land the applicant is claiming.”. [Emphasis added]

Based on the authorities above and provision under subparagraph 2(1) of the First Schedule of Act 486, I shall determine whether the Applicant has proved a prima facie case that the compensation awarded by the Respondent is inadequate.

In the present case, the said Land is categorised as being for service apartment use only and the planning approval for 342 units of service apartment was granted on 18.06.2013 and subsequently extended twice, namely on 22.03.2017 and 18.05.2020. The planning approval has lapsed on 21.03.2021. However, on the date of valuation, the said Land is a vacant land without any building or structure. Therefore, I will rely on the transaction of similar vacant land to arrive at the fair market value of the said Land for compensation consideration.

Both the Government’s valuer and the Applicant’s valuer has used the comparable matter in determining the market value for the said Land. The Government’s valuer valued the land at RM6,600.00 sqm whereas the private valuer valued the land at RM8,611.00 sqm. During the inquiry, the Respondent accepted the Government’s valuation and awarded RM6,600.00 sqm insofar as the “market value” is concerned.

The assessment by the Government’s valuer, Applicant’s valuer and the award by the Respondent are as follows: Applicant’s Valuer Government’s Valuer (sqm) Respondent’s Award Market Value RM13,510,659.00 (RM8,611.00 sqm) (RM6,600.00 sqm) (RM6,600.00 sqm) Injurious Affection/ Severance RM33,031,796.00 (Balance land area 3,836 sqm x RM8,611.00) - -

The general characteristics of the said Land, which are important in the assessment of the market value, are as follows:

the said Land is located at Kampung Wadihana, Central Business District, Johor Bahru city centre;

the said Land is located about 1.5km to the north of Johor

the said Land is accessible from the Johor Bahru City Centre to Kampung Wadi Hana through Jalan Wong Ah Fook until Jalan Tebrau. Thereafter, turn left onto Jalan Mohd Taib and finally through onto Jalan Wadi Hana where the said land is located;

the category of land use of the said Land is building with the express condition of serviced apartments;

the said Land is generally flat in terrain and is level with the frontage road, i.e Jalan Wadi Hana. However, the eastern portion lies below Jalan Tebrau and there is slope along the boundary abutting to Jalan Tebrau;

the surrounding developments to the said Land comprise of commercial shops, shopping complexes, office buildings, hotels, serviced departments, condominium and high-end residential livings, e.g. Setia Sky 88, Twin Galaxy Residences, Metropolis Tower, Pinnacle Tower and Trove

the surrounding developments near Kampung Wadi Hana include Government buildings such as the Cawangan Trafik lbu Pejabat Polis Daerah Selatan, Ibu Pejabat Polis DiRaja Malaysia Kontinjen Johor, Menara Majlis Bandaraya Johor Bahru and the Custom Immigration and Quarantine Complex.

There are three (3) comparables used by the private valuer and four (4) comparables used by the Government’s valuer. Out of these seven (7) comparables, there are two (2) common comparables between the Government’s valuer and private valuer. These two (2) common comparables are:

PTB 24599 which is a plot of vacant commercial land situated off Persiaran Abu Bakar, Danga Bay, Johor Bahru i.e. comparable 2 in the private valuer’s report and comparable 1 in the Government valuer’s report; and

PTB 24600 which which is a plot of vacant commercial land situated off Persiaran Abu Bakar, Danga Bay, Johor Bahru i.e. comparable 3 in the private valuer’s report and comparable 2 in the Government valuer’s report.

These two (2) comparables are actually adjoining lands and for this reason, the adjustments made by the Government’s valuer and private’s valuer respectively are the same. The major differences in adjustments between the private and Government valuers are as follows:

The Government’s valuer and the private valuer have given different adjustment based on the locality, accessibility, size and plot ratio for these two (2) comparables. Both valuers have their own views and justifications for such adjustment.

The differences in adjustments by both valuers are as follows:

Location – the Government’s valuer proposed adjustment of -5% due to the better location of the common comparables i.e. within the international zone and surrounded by more adept developments. The Respondent contended the adjustment of +15% by the Applicant’s valuer for location is unjustified as the common comparables are in a better location (see Faktor Lokasi (paragraphs 1 and 2), page 2, Enclosure 19). The adjustment Private Valuer Government’s Valuer Location 15% -5% Access 10% 0% Layer 5% 0% Seaview 0% -10% +15% by the Applicant’s valuer indicated that the value of the said Land will be increased after the acquisition;

Seaview – the Government’s valuer proposed adjustment of 10% due to the seaview frontage of the common comparables (which translates to better marketability). The Respondent argued that the Applicant’s valuer has ignored this (see Faktor Lokasi (paragraph 3), page 2, Enclosure 19);

Accessibility – The Respondent submitted there is no basis for the Applicant’s valuer to adjust +10% for accessibility as the transfer of the common comparables includes the provision of a road infrastructure (see Faktor Jalan Masuk, page 3, Enclosure 19);

Layer – the Respondent argued that there is no basis for the Applicant’s valuer to adjust +5% for layer because the common comparables are also located in the first layer from Jalan Sekunder, Off Jalan Abu Bakar and the said land has no double frontage (see Lapisan/ Jalan Masuk, page 3, Enclosure 19);

Size – the Government’s valuer proposed adjustment of +5% as the said land is smaller. The Respondent submitted that the Applicant’s valuer’s adjustment of +10% is excessive (see Faktor Luas Tanah, page 3, Enclosure 19);

Plot ratio – the common comparables have a plot ratio of 1:10 as compared to the said Land with a plot ratio of 1:8. The Applicant’s valuer proposed a downward adjustment of -10% while the Government’s valuer proposed a downward adjustment of -5% to reflect the different in plot ratio (see Plot Ratio, page 4, Enclosure 19).

The following rate proposed by the Government’s valuer and the private’s valuer after the adjustment has been made: Common comparable Lot No. Private’s valuer (sqm) Government’s valuer (sqm)

PTB 24599 RM9,364.00 RM6,500.00

PTB 24600 RM9,364.00 RM6,500.00

The two (2) assessors after considering the submissions of the parties and after perusing all the documents including the two (2) valuers’ report have prepared the assessors’ report. The proposed award by the two (2) assessors for the said Land are summarized as below: Government Assessor (sqm) Private Assessor (sqm) Market Value (Land acquired 1569 sqm) RM6,600.00x1569 sqm=RM10,355,400.00 RM6,900.00 x1569 sqm=RM10,826,100.00 Injurious Affection (Balance of land 3,836 sqm) RM6,600.00x15%x3,836 sqm=RM3,797,640.00 RM6,900x35%x3836 sqm=9,263.940.00 Incidental cost - - Total RM14,153,040.00 RM20,090,040.00 (-) Respondent’s award Additional award RM3,797,640.00

With regard to the opinion of the two (2) assesors, I am guided by the Federal Court decision in the case of Semenyih Jaya Sdn. Bhd. v. Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 which explained the procedure regarding the opinion of the assesors as follows: “(a) by s. 40A, the matters are to be heard before a single judge. The court shall appoint two assessors to assist the judge in determining the objection made by the appellants against the amount of compensation awarded by the land administrator;

at the end of the proceedings, the assessors are required to give their opinions in writing as to the appropriate amount of compensation to be awarded in this case pursuant to s. 40C of the Act. The assessors must give due consideration to all the heads of compensation claimed by the appellant under the Act;

the opinion of the assessors are to be recorded by the judge. The judge has the duty to consider both of the opinion of the assessors. The judge is to exercise his mind in determining the amount of compensation to be awarded to the appellant, based on the principle of equivalence; and

the provisions of sub-s 36(4) of the Act are to be given full effect. The judge shall not be bound to conform to the opinions of the assessors. In the event of any disagreement between the assessors with regard to the amount of compensation, the judge may elect to consider which is the two opinions in his view is appropriate in the circumstances of the case. The judge is also at liberty to depart from the opinion of either of the assessors and decide on the reasonable amount of compensation to be awarded to the appellant by giving reasons for so doing.” [Emphasis added]

Based on the above authorities, it is clear that the Court is not bound by the opinion of the assessors. If the opinion of the two (2) assessors on the amount of compensation to be awarded are different, the Court can elect the opinion of the assessor which is considered to be appropriate in the circumtances of the case or depart from the opinion of the two (2) assesors and decide the amount of the compensation to be given to the Applicant.

I have looked into the two (2) comparables i.e PTB 24599 and PTB 24600 which were transacted respectively on 01.07.2020 and 12.12.2019, both are freehold lands and adjacent to each other, transacted within two (2) years from the date the Scheduled Land being assessed, which were RM6,458.00 sqm for each lot.

In determining the market value, I have taken into account the planning permission previously obtained by the Applicant prior to the acquisition and the said Land is a vacant land without any building or fixtures onto the said Land when part of the said Land was acquired and valuation was made.

I find the private valuer has failed to show the proposed market value of RM8,611.00 sqm is a result of the value adjustment and the proposed market value is excessively high. I find the Respondent has taken into account the planning permission obtained by the Applicant prior to the acquisition and has given 10% in his adjustment.

After carefully deliberating the two (2) assesors’ reports and taking into account three (3) Johor Bahru High Court decisions made on 10.03.2022 and 07.04.2022 respectively in awarding the compensation for land reference proceedings for the land acquired within the vicinity of the said Land, namely Lot PTB 24728, Lot PTB 22472 and Lot PTB 20077, are within RM6,300.00 sqm to RM6,500.00 sqm, I find the opinion of the Government’s assessor is more appropriate and the amount of compensation proposed is justifiable based on the circumtances of this case.

I ruled that the Applicant has failed to prove the award made by the Respondent is inadequate and thus, the award of the Respondent shall be maintained. Hence, no additional award will be given to the Applicant.

Whether injurious affection should be awarded for the remaining land

The Applicant submitted that they had obtained planning approval for the construction of a high-end service apartment consisting of 38 floors and 342 units of apartments. It was part of the planning approval that access would be from Jalan Wadihana. Access from Jalan Tebrau was not allowed by reason of the negative impact it would have on the highway traffic as Jalan Tebrau was and remains a busy 4-lanes highway. The barring of access from Jalan Tebrau is made clear in JKR’s letter dated 14.10.2020 which expressly disallowed any ‘in-and-out access’ from Jalan Tebrau.

With the acquisition, access from Jalan Wadihana is also now impossible because insofar as Jalan Wadihana is concerned, the land is landlocked. The evidence of this comes from the Respondent’s own Layout Plan for RTS (”KML Plan”) and Building Plan for RTS plan (”KMB Plan”). These plans revealed that there is a Third Party land between Jalan Wadihana and the said Land. It would appear that the Third Party concerned is the Federal Government.

The Applicant contended that the Respondent has failed to award any compensation for injurious affection whatsoever and the failure to make such an award was erroneous.

The Applicant submitted that the Respondent has erred in failing to award for injurious affection based on the following reasons:

access from Jalan Wadihana but is now ‘’land-locked” i.e., no access whatsoever;

the said Land was regularly shaped but is now reduced in size and oddly “L” shaped. This disproportionately negatively impacts the plinth or footprint of any building that can be erected;

with the building of the RTS depot directly beside the remaining land, the initial salubrious surrounding has been ruined; and

the incidental cost of expenditure on the land being the costs of obtaining planning permission that is “wasted” as the Service Apartment development initially planned is no longer possible.

On the other hand, the Respondent submitted that the RTS Link permanent works design, the construction of a depot structure known as the Wadi Hana Depot is required for the operation of the same. The development and design of the Wadi Hana Depot requires the realignment of the existing Jalan Wadi Hana which partially encroaches the said Land.

The Respondent argued that the realigned Jalan Wadi Hana which is bound to go through the said Land will create a new direct access route to the balance land area (see paragraphs 16-21 of Enclosure 21). Thus, the Applicant's claim that the access to the balance land area (and any proposed development thereon) is affected ought to be dismissed based on the following reasons:

planning permission submitted for the proposed development of the high-end serviced apartments, the width of the existing Jalan Wadi Hana is 13.41 metres; and

(ii) the size and/or access of the realigned Jalan Wadi Hana upon the completion will remain the same as the existing Jalan Wadi Hana.

Therefore, the balance of the land area can be assessed through “Serahan Rizab Jalan Wadi Hana (Jajaran Baru) 13M” and as stipulated by the Majlis Bandaraya Johor Bahru’s requirement for the development of the Jalan Wadi Hana Depot.

The Respondent argued that the acquisition of the said Land involved the northern portion of the said Land which faces the existing Jalan Wadi Hana and therefore the access from Jalan Tebrau is unaffected by the acquisition part of the said Land. This is clearly explained by the Government’s valuer in page 12 of JPPH Rebuttal Report. Thus, the contention of the Applicant on the accessibility from Jalan Tebrau is devoid of merits.

With regard to the contention of the Applicant that the access from Jalan Tebrau is not permitted by the JKR due to traffic conditions, the Respondent submitted that this issue is not related to the acquisition of the part of the said Land.

In determining this issue, I refer to paragraph 2(d) of the First Schedule of Act 486 which it provides as follows: “the damage, if any, sustained or likely to be sustained by the person interested at the time of the Land Administrator's taking possession of the land by reason of the acquisition injuriously affecting his other property, whether movable or immovable, in any other manner.”. [Emphasis added]

The claim of the Applicant is premised on paragraph 2(d) of the First Schedule of Act 486. I refer to the Federal Court decision in the case of Collector of Land Revenue v Looi Lam [1981] 1 MLJ 300 where Suffian LP held that— “Be it noted that our provision is stronger than the Indian, for ours provides that not only must regard be had to the damage actually sustained by the owner but also damage likely to be so sustained.”. [Emphasis added]

It is clear from the authorities above, the award of damages is not limited to the damage actually sustained by the Applicant but also include the damage likely to be sustained.

In the instant case, there was no award for the injurious affection to the Applicant.

After giving careful considerations on the facts and the laws submitted by the parties, I find it is not disputed that the shape of the said Land has changed from the a regular rectangular shape to an irregular “L” shape after the acquisition. The size of the said Land has been reduced and the Applicant has contended it has affected the development of the 342 units of service apartment.

I find the contention of the Applicant is mainly speculative in future as there is no evidence adduced by the Applicant that they had in actual fact taken any step to develop the said Land or building, (except adverstisement and sales gallery), prior to the statutory land acquisition process at the date of hearing of the land enquiry.

Despite the Applicant obtaining the planning permission way back in 18.06.2013 and subsequently extended twice, namely on 22.03.2017 and 18.05.2020 till the planning permission lapsed on 21.03.2021, no building or structure was ever constructed.

According to the Government’s valuer, the Applicant did advertise and promote sales for the Tebrau 8 Project on 31.08.2014 as claimed by the Applicant’s valuer is true, the said Project should be completed by year 2017 and 2018.

Except the Applicant has launched the sales and marketing for the said Project on 31.08.2014, no physical development was carried out on the said Land till part of the said Land was acquired on 08.10.2020. It shows the marketing and sales of the proposed 342 units of service apartment was not stimulating and effective. Since there is no evidence to show that the Applicants had taken any steps to initiate any development on the said land or building prior to the land acquisition process, that would further fortify my conclusion that the non-development of the said Land since 2013 indicate that the development of the 342 units of service apartment is not viable. Therefore, the argument of the Applicant that the development of the said Land is not feasible and economical after the acquisition is baseless.

Hence, there is no basis for the Applicant to claim the balance of the said Land will suffer a purported diminution of value of 100% of the present market value due to the acquisition of the Scheduled Land and claimed injurious affection in the amount of RM33,031,796.00 for the balance of the said Land 3,3836 sqm based on 100% of the RM8,611.00.

Further, I find there is still an access road to the said Land vide realigned Jalan Wadi Hana and via road at Jalan Tebrau. It is not landlocked as claimed by the Applicant. The access to the balance of the land remains the status quo after the acquisition.

I further find that the width of the realigned Jalan Wadi Hana will still remain 13 meters after acquisition. Therefore, the contention of the Applicant that they have to surrender extra land to widen the Jalan Wadi Hana is devoid of merits.

In the present case, the Respondent submitted on the basis of Datuk Dr. Murugasu Sockalingam v. Superintendent of Lands and Surveys, First Division, Sarawak [1983] 1 LNS 30 that there should be two (2) valuations, that is, before and immediately after acquisition to measure loss for injurious affection.

I am of the considered view that although there were no comparisons provided in this case, it was not fatal to the Applicant’s claim as it was stated by by Ravinthran Paramaguru JCA in Desa Kudalari Management Corporation v. Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2021] 1 LNS 107, that despite the absence of a post-acquisition valuation, an award for injurious affection could be awarded especially where there was serious diminution in value of the land.

According to the Respondent, access to the remaining land will be through the realignment of Jalan Wadi Hana Baru in the future which has a width of 13 meters compared to the planning standard of 20.116 meters. If the Appellant intends to develop the remaining land, then the Applicant is required to surrender another 386 square meters to build access from Jalan Wadi Hana Baru. It will be a double surrendering of the said Land as the Applicant was required to surrender 223.12 square meters when they applied for planning permission. By doing that, the plinth size of the remaining land will be reduced.

As a result of the setback requirements, the said Land is now reduced in size and became oddly “L” shaped after acquisition, This negatively impacts the plinth or footprint of any building that can be erected and thus affect future development on the remaining land. Taking into account there is no clear undertaking by the Federal Government under paragraph 2(f) of the First Schedule of Act 486 that they will allow the Applicant access through the interspersing land to the remaining land, I find it is necessary to award the damages for injurious affection.

Since there is no evidence to show the plinth size of the remaining land has reduced to 70% and taking into account there is possibility of future development on the remaining land, I decided the reduction in the market value of 15% be awarded to the Applicant for the remaining land of 3,836 sqm.

Whether the Applicant is entitled to claim incidental costs

The Applicant's claim for incidental costs is based upon the expenses incurred from the planning permission for the development of the proposed serviced apartment units (i.e. contribution to authorities, professional fees, advertisement and sales gallery and administrative expenses).

The Government's Valuer has provided a detailed breakdown in rebuttal to the Applicant's claim for the said incidental costs as stated in pages 14 to 16 of Enclosure 15.

As stated in paragraphs 54 and 55 above, the Applicant's extension of the planning permission for the development of the serviced apartment units have lapsed since 21.03.2021 and consequently, the expenses incurred from the purported incidental costs are not caused by or a result of the acquisition of the Scheduled Land.

I find that the costs and loss incurred by the Applicant to obtain the planning permission prior to the acquisition was wasted costs as no development was ever carried out by the Applicant. The said Land remains a vacant land at the time of acquisition. Should the Applicant carried out some development on the said Land and such development has been affected by the acquisition, those facts will certainly be taken into account by me and my decision thereafter may or may not be the same as present.

Further, I find the Applicant's claim for incidental costs is too remote as those costs are not the natural and reasonable consequence of the acquisition of the Scheduled Land.

In this regard, I refer to the Federal Court decision in the case of Semenyih Jaya Sdn. Bhd. v. Pentadbir Tanah Daerah Hulu Langat (supra) where the Federal Court held that— “[206) The qeneral principle governing the extent of compensation claimable for consequential loss is that such loss must not be too remote and that it is the natural and reasonable consequence of the acquisition (Harvey v Crawley Development Corporation [1957] 1 QB 485).” . [Emphasis added]

I have taken into account the opinion of the two (2) assesors that incidental costs incurred are the costs incurred to obtain the planning permission prior to the acquisition and those claims should not be considered. Hence, I dismiss the Applicant's claim for incidental costs based on the above reasons.

CONCLUSION After careful scrutiny and judicious consideration of all the evidence before this Court, including the written and oral submissions of both parties, and both Assessors’ reports, I allowed part of this Application to the extent of the awards below:

market value for the Scheduled Land remains as RM6,600.00 sqm and the award of the Respondent for the sum of RM RM10, 355,400.00;

injurious affection for the remaining land is RM3,797,640.00 (RM6,600.00x15%x3,836 sqm);

claim of incidental costs is disallowed;

other awards by the Respondent is maintained;

additional award of RM3,797,640.00 shall be paid by the Respondent to the Applicant within three (3) months from the date receipt of the sealed order and failure which, the late charges at the rate 5% per annum on the said award shall be imposed from the date of issuance of Form K till the full settlement;

deposit of RM3,000.00 to be returned to the Applicant by the

assessor’s fee for the sum of RM500.00 each for each session shall be paid by the Applicant within seven (7) days from the date of this Order. Dated 8 March 2026. Signed by: sgd ……………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor For the Applicant: Mr. H M Wong with Mr. Eng Kar Wai and Mr. Ronald Ang Yu Chye Messrs. Nora S. W. Lam & Associates Counsel/Solicitor For the Respondent: Mr. David Ng Yew Kiat with Mr. Ananthan A/L Nithya Moorthi and Mr. Arief Aiman Bin Hamir Hamzah (Federal Counsel),