Sunrise Green Sdn Bhd v Jabatan Ketua Pengarah Tanah dan Galian Persekutuan (W-01(W)-653-11/2021)

(a) Compensation of RM536,355.00 in respect of the market value of the acquired land of 59.595 square metres based on the value of RM 9,000.00 per square metre; and

(b) Injurious Affection of RM548,647.00 on the balance of the unacquired portion of 406.405 square metres at 15% on a value of RM9000.00 per square metre. [13] Aggrieved with the award of the Land Administrator, the appellant filed an application with the Land Administrator under Form N of the Act, requesting that the Land Administrator refer the matter to the court for its determination. The High Court Award [14] At the High Court, based on the private valuation report from Henry Butcher Malaysia Sdn Bhd, the appellant claims for the followings:

(a) Market value of the acquired land area of 59.595 square meter @ RM13,993.00 per square meter = RM833,300.00;and

(b) Injurious affection of 100% on the affected land area ie remainder area of the subject land together with the adjoining lots with total land area of 3,168.83 square metres @ RM13,993.00 per square metre = RM44,341,700.00. [15] With regard to the first claim, the government’s assessor recommended a market value of RM 10,000.00 per square metre while the private assessor recommended RM11,000.00 per square meter. The learned Judicial Commissioner (L JC) preferred the recommendation of the private assessor and decided that market value of RM11,000.00 per square metre is fair and reasonable. Accordingly, the L JC awarded a compensation of RM655,545.00 (ie 59.595 square metres x RM11,000 per square metre) as the market value of the acquired land. Therefore, there is an increase of RM119,190.00 (RM655,545.00 - RM536,355.00) from the award of the Land Administrator. The appellant did not appeal against the award of RM655,545.00. [16] With regard to the second claim, the L JC rejected the appellant’s claim for compensation of RM44,341,700.00 for injurious affection. Instead, the L JC decided that a fair and reasonable amount of compensation for injurious affection is RM670,568.00 which is 15% of RM11,000.00 on the unacquired portion of the subject land ie 406.405 square metres only (excluding the adjoining lots). The L JC supported his decision with the following reasons :

(i) Both assessors have recommended that an award of compensation for injurious affection is warranted due to the loss of the original frontage affecting access to the subject land.

(i) The appellant has paid a premium of RM648,597.00 to DBKL for the conversion of the adjoining lots and the subject land into commercial land in 2015.

(v) With the loss of the original single frontage, the proposed development is now without a proper access, landlocked and is totally inaccessible.

(a)..

(b)..

(c)…

(d) 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 moveable or immoveable, in any manner.” [23] In short, the appellant is asking this court to award compensation for injurious affection for the entire proposed development land (3,168.83 square metre adjoining lots plus 406.405 square meter unacquired subject land) for an acquisition of only 59.595 square metres. [24] In our view, the appellant is entitled to claim compensation for injurious affection for the entire proposed development land if it can proved the proposed development land is landlocked and inaccessible as a result of the acquisition. This, we find the appellant had failed to do. [25] It is an undisputed facts that the original access road for Lot 487 was along Jalan Kampung Pandan and right at a sharp corner next to Lot 20060. It was a left in and left out junction with dual single lane. [26] As a result of the acquisition, the Concessionaire of SPE ie Lebuhraya Duke Fasa 3 Sdn Bhd has proposed that the access road be shifted to Lot 490 with Right-In-Right Out (RIRO) at the Kampung Pandan Roundabout. Lot 490 is a road reserve. Para 3.0 of the Concessionaire’s brief report (Enclosure 6 p 260) states: “ In conjunction with the above, EDP proposed to shift the new left in left out junction near to Lot 490. This location connected to Jalan Kampung Pandan at the straight alignment which better sight distance compared to the previous junction at the bend curve. For acceleration, a dedicated lane has been provided to ease the traffic from the said lot. The proposed new access road is therefore safer as compared to the previous existing access. The concept of proposed shifting of the mentioned junction has been approved by DBKL on 7.1.2020.” [27] On the other hand, the appellant has engaged Atur Trafik Sdn Bhd to conduct a traffic impact assessment (TIA) study on the traffic junction J1 at the Kampung Pandan Roundabout with Right-In-Right Out (RIRO) access to the proposed development site. The TIA report (Enclosure 6 p. 216) states: “Our traffic analysis and micro-simulating modelling works have found that the proposed development site will become effectively a piece of land locked property due to the high traffic volume circulating at the Kampung Pandan Roundabout and the RIRO being located too close to J1.” [28] Based on the Concessionaire’s report, we agree with the finding of the L JC that with the proposed shift of the access road to Lot 490, there is an alternative access to the development site and that the entire piece of land is not landlocked as claimed by the appellant. We disagree with the appellant that the proposed development is no longer feasible because only a small portion (59.595 square metres or 12.8% of Lot 487) was acquired. The remainder land of Lot 487 is still in economical size for the development. While the adjoining lots are intact. [29] In our view, the appellant’s concept of “one for all and all for one” in that the loss of the original access road had impacted not only the acquired Lot 487 but also the adjoining lots as a one piece of development land has no application to land acquisition. This is because compensation is given to the portion of the land acquired and damage caused to the land so acquired. In this case, the acquired land is Lot 487 only. The original access road is located in Lot 487. The acquisition extinguished the access road in Lot 487. Therefore, damage is caused to Lot 487. Common sense dictate that compensation for injurious affection for the loss of the original access road is to be confined to Lot 487 only. The appellant cannot lump together the adjoining lots with Lot 487 as one piece of land when in reality the adjoining lots remain intact physically. There is no damage and no injurious affection to the adjoining lots. The only connection between Lot 487 and the adjoining lots is they shared a single access road in Lot 487. The problem of losing the original access road is solved with the road access being shifted to Lot 490. In the circumstances, in our view it is unfair for the appellant to claim for compensation for injurious affection for the entire 6 lots as one big piece of land when only one lot is affected. [30] The appellant maintains its position that based on TIA report by Atur Trafik Sdn Bhd, the proposed shifting of junction from Lot 487 to Lot 490 will cause a landlock situation to the development site due to heavy traffic at Kampung Pandan Roundabout. The issue of traffic congestion was considered by the L JC and this is what His Lordship says at para 83 and 84 of the judgment: “83. But forecasts and projections, by its very nature, are not certain and definite. It might even border on being speculative. As observed by the Federal Court in Ng Tiou Hong v Collector of Land Revenue Gombak (1984) 2 MLJ 35, too much weight should not be given to the estimates, forecasts and projections of experts or consultants, unless it is supported by other evidence.

It seems to me that traffic congestion in the vicinity of the proposed development is a perennial problem. Moreover, the traffic situation may be in a state of flux and could change, depending on future infrastructure works and other developments. As such, I find that the proposed development site is not land-locked and totally inaccessible as alleged due to the purported high traffic volume.” [31] It is our considered view that the analysis and the conclusion reached by the LJC is a correct finding of facts. At best, TIA is a speculation. But, what is certain is there is an alternative access road in Lot 490 which has been approved by DBKL. The proposed new access road clearly shows the development site is not landlocked. On this ground alone, the appellant’s appeal must fail. [32] In conclusion, we find all the points raised by the appellant in this appeal have been considered by the L JC. We see no good reason to disturb the finding of fact made by the L JC. It is our considered view that this is not an appropriate case for appellate intervention. Accordingly, we dismiss the appeal with costs of RM10,000.00 to the respondent. Dated 28 th September 2022. Hadhariah binti Syed Ismail Judge Court of Appeal For the Appellant : Mr Ong Kheng Leong (Muhammad Zaidi bin Izman Murugan & Hee Hooi Chun with him); Messrs Ghazi & Lim. For the Respondent : En Iskandar Zulkarnaen bin Che Mohd Nor (Puan Natassa binti Zaini with him); Federal Counsels; Attorney General Chambers.