CHING TO YUEN LTD v. THE INCORPORATED OWNERS OF PRISTINE VILLA

HCA 632/2018

[2025] HKCFI 388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 632 OF 2018

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BETWEEN

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JUDGMENT

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1.   Introduction

1.1  The Plaintiff (“P”) is and was at all material times the owner and occupier of Lot No 374 and Sections A and B of Lot No 375 in DD 186 (“P’s Land”). P’s Land is situate in the upper part of the Tao Fung Shan (道風山) area in Shatin, New Territories.

1.2  The Defendant (“D”) is and was at all material times the Incorporated Owners of Pristine Villa. Pristine Villa is situate in a lower part of the Tao Fung Shan area relative to P’s Land and was erected on Sections A, B and C and the Remaining Portion of Shatin Town Lot No 331 (“D’s Land”). The developer of Pristine Villa was Sun Hung Kai Properties Ltd and the development consists of 14 blocks of building (with 498 flats), a clubhouse, common facilities including a swimming pool and car parking spaces. The development was completed in 1995 and the purchasers started to take possession of their respective units in or about April 1995.

1.3  The present proceedings are concerned with an alleged right of way over Pak Lok Path, which is the access road of Pristine Villa (“Access Road”). The Access Road is coloured red on Annexure A annexed hereto with the blocks of building of Pristine Villa coloured orange.

1.4  It is common ground that the Access Road is a private road. The geographical context can be shown by reference to another plan annexed hereto as Annexure B (“Plan”)[1]:

(1) P’s Land is marked in blue;

(2) D’s Land is marked in pink;

(3) the Access Road is marked in green;

(4) the road marked in orange is To Fung Shan Road (a public road); and

(5) the road marked in yellow is an unnamed road leading from To Fung Shan Road to P’s Land.

1.5  A prominent feature in the present case is as follows:

(1) Prior to the construction of the Access Road, the area of D’s Land upon which the Access Road was built was a gentle slope with no visible road, trail or footpath. At that time, To Fung Shan Road served as the road for both uphill and downhill vehicular and pedestrian traffic to and from the Tao Fung Shan area in which the P’s Land situates;

(2) Following the completion of the construction of the Access Road, To Fung Shan Road has effectively been divided into the upper section and the lower section as separated by the roundabout located at the intersection of To Fung Shan Road and the Access Road[2];

(3) The upper section of To Fung Shan Road from the roundabout to P’s Land is a two-way road and there are lay-bys at which vehicles coming from a different direction can stop in case there is not enough space for both vehicles to go past each other. The lower section of To Fung Shan Road became a one-way road in uphill direction (“1995 Traffic Arrangement”);

(4) The Access Road is a two-way road for vehicles to go both uphill and downhill. It is therefore the case that vehicles travelling to the Tao Fung Shan Area, if the 1995 Traffic Arrangement remains in place, can only leave the area via the Access Road;

(5) As will be seen below the 1995 Traffic Arrangement was put in place shortly after the completion of the construction of the Access Road.

1.6  Although P’s Land is zoned as “green belt”, P has since 2005 operated a columbarium (“Columbarium”) on it (the legality of which is in dispute). It is P’s case that the visitors to the Columbarium and in particular the shuttle buses operated by it are entitled to use the Access Road. These proceedings were commenced in March 2018. As canvassed below, D had, in 2017, started to restrict the use of the Access Road by P’s shuttle buses.

1.7  In the Statement of Claim (“SOC”), the relief sought by P are[3]:

(1) A declaration that P is entitled to an easement or a right of way over the Access Path within the land owned by D;

(2) Further or in the alternative, a declaration that the public has a public right of pedestrian and vehicular way over the Access Path at all times and for all purposes; and

(3) An injunction restraining D (and its servants, agents and representatives) from constructing or causing or permitting to be constructed anything restricting, preventing or interfering with the reasonable enjoyment of the Access Path by P (and its visitors servants and licensees) at all times and from doing any act whereby P may be hindered or obstructed in the free use of the Access Path by pedestrian or vehicle.

1.8  P’s claims are denied by D. In the Re-Amended Defence and Counterclaim (“RAD&C”), D counterclaims for:

(1) A declaration that P has no right of way over the Access Road for vehicular traffic;

(2) An injunction restraining P from using the Access Road for vehicular traffic without D’s consent;

(3) Damages for trespass;

(4) In the alternative to (1), (2) and (3):

(a) A declaration that D is entitled to impose reasonable measures to regulate the use of the Access Road by P for vehicular traffic especially during Ching Ming Festival and Chung Yeung Festival; and

(b) Damages for nuisance.

1.9  At the trial, P was represented by Mr Colin Leung and D by Mr MC Law SC (leading Mr Keith Chan).

1.10  Of the issues identified in the Agreed List of Issue (“ALOI”), Mr Leung in opening confirmed that P no longer relies on the ground of easement by necessity. The following issues identified in the ALOI therefore remain for determination:

(1) In respect of P’s claim of easement (“Issue 1”):

(a) Whether the alleged right of way for pedestrian and vehicular traffic over the Access Road in favour of P’s Land is capable of being an easement;

(b) If the answer to (a) is affirmative, whether, on the present facts, an easement in respect of the aforesaid right of way arose by prescription by way of lost modem grant; and

(c) If the answers to (a) and (b) are affirmative, whether such easement has been extinguished or suspended by reason of the radical change of character of P’s Land;

(2) Whether there was a legally effective dedication of the Access Road as a public right of way (“Issue 2”);

(3) If P succeeds in establishing an easement in respect of the Access Road or a dedication of the Access Road as a public right of way, whether P is entitled to any relief, and if so what relief (“Issue 3”);

(4) As to the Counterclaim (“Issue 4”):

(a) Whether P is liable for trespass to D’s Land;

(b) Whether P is liable for private nuisance, by reason of P’s use of P’s Land to operate the Columbarium and/or the use of the Access Road to access the Columbarium; and

(c) If P is liable for trespass and/or private nuisance, whether D is entitled to any relief, and if so what relief.

2.  Witnesses

2.1  P and D each called one witness. P called Mr Chan Sing Wai George (“Mr Chan”), a project manager of P. D called Mr Wong Shiu Kwan (“Mr Wong”)[4], the Vice Chairman of the management committee of D. D had previously filed witness statements from Mr Wong Chun Keung (“CK Wong”), a former Chairman of the management committee of D. As CK Wong had stepped down as the Chairman of the management committee in 2022 and could not be located, D decided to call Mr Wong as the “replacement” witness. Mr Wong and CK Wong were appointed respectively Vice Chairman and Chairman of the management committee of D on 29 August 2018 and both started to live in Pristine Villa in April 1995. Mr Wong largely adopts the contents set out in the witness statements previously filed by CK Wong.

2.2  I agree with Mr Law that the resolution of the present case does not turn on the credibility of the oral evidence, as the documents adduced at the trial largely speak for themselves. Without prejudice to the foregoing, I agree with Mr Law on his following observations on the witnesses.

2.3  Mr Chan lived and worked in England until 2011 and only joined P’s group of companies in 2015. Prior to 2015, he had no personal involvement in P’s Land or the Columbarium. As will be seen below, Mr Chan’s lack of personal knowledge of events prior to 2015 is an important deficiency in P’s case. Relatedly, as pointed out by Mr Law, a large part of his evidence consists of his beliefs, opinions, legal arguments or matters outside his personal knowledge, on which Mr Law in opening already stated no cross-examination was warranted or required. In closing, Mr Leung only placed limited reliance on Mr Chan’s evidence.

2.4  Conversely, Mr Wong is in my view a credible witness. His evidence was clear and straightforward and made appropriate concessions. Indeed, Mr Leung in closing did not make any criticism on Mr Wong’s credibility.

3.  Basic facts

3.1  The parties have provided an agreed chronology setting out the basic facts (“Agreed Chronology”). I endeavour to summarize below the matters set out in the Agreed Chronology, supplemented by my observations and those set out in Mr Law’s closing submissions (with which, as I understand, Mr Leung has no quarrel). As one might expect, some of the details are not reflected in the Agreed Chronology and they will be canvassed at the appropriate juncture when dealing with the issues identified at §1.10 above.

3.2  As to P’s Land:

(1) On 21 September 1987, part of P’s Land (Lot Nos 374 and 375A) were leased by the then owner, Hamilton Properties Limited (“Hamilton”) for residential purposes to Charlotte Horstmann & Gerald Godfrey Ltd for a term of 58 months. Mr Gerald Godfrey (“Mr Godfrey”) was the then Moroccan consul in Hong Kong.

(2) On 30 September 2003, Hamilton assigned P’s Land to P[5], and on the same day, a licence was granted to Mr Godfrey to continue to occupying P’s land for residential purpose until 15 February 2004.

3.3  As to D’s Land:

(1) On 3 August 1991, D’s Land was granted by the Government to the Board of Trustees of Chung Chi College and the Christian Mission to Buddhists (“Original Grantees”) under New Grant (Conditions of Exchange) No. 12368 (“New Grant”);

(2) In 1995, construction of Pristine Villa including the Access Road was completed. In the course of 1995:

(a) On 23 February 1995, Mr Eric CH Tung (“Mr Tung”), the then Deputy Manager of Sun Hung Kai Real Estate Agency Ltd (purportedly on behalf of the Original Grantees) sent a letter to the Shatin District Lands Office stating that "the access road as shown as pink stippled black area on Plan No. ST2036/l-DF [ie the Access Road] will be opened to public 24 hours a day after the issuance of Certificate of Compliance" (“Tung Letter”);

(b) On 27 March 1995, the Original Grantees divided D’s Land into 4 portions (Lot Nos 331A, 331B, 331C and 331 RP). As set out in the recitals of the Deed of Mutual Covenant of D’s Land (“DMC”), the foregoing division or carving out was done to cater for the possibility of surrendering parts of D’s Land to the Government. Lot No 331C in the parcel of land on which the Access Road is situate, and Lot No 331A is in respect of another portion of D’s Land which might be surrendered under the terms of the New Grant;

(c) On 3 April 1995, the Letter of Compliance was issued, certifying that "all the positive obligations imposed on the Grantee in respect of the above lot under the General and Special Conditions of [New Grant]" had been complied with to the satisfaction of the Director of Lands;

(d) On 6 April 1995, the Original Grantees assigned all 4 portions of D’s Land to Enleader Company Ltd as the first purchaser, and the DMC was executed. Under the DMC, Hong Yip Service Company Limited (“Hong Yip”), a company within the Sun Hung Kai group of companies, was appointed the manager of Pristine Villa; and

(e) On 11 April 1995, by arrangement of the Transport Department, the lower section of To Fung Shan Road (which had hitherto been for two-way vehicular traffic) was converted to one-way uphill vehicular traffic (ie the 1995 Traffic Arrangement).

3.4  On 10 February 1998, D was incorporated.

3.5  Following the expiry of the licence granted to Mr Godfrey, in 2005, P started to operate the Columbarium known as 淨土園 on P’s Land.

3.6  In 2006, P started to organize shuttle buses to travel between Tai Wai MTR station and the Columbarium using the Access Road.

3.7  Since 2006, D or Hong Yip had issued letters to complain to various government authorities regarding the use of the Access Road by P’s shuttle buses and the operation of the Columbarium on P’s Land, for example:

(1) Letters from Hong Yip to the Home Affairs Department, the Lands Department, the Planning Department, and the Transport Department dated 29 March 2006. Except for the letter to the Planning Department, D had in the other letters expressly stated that the Access Road was a private road;

(2) Letter from Hong Yip to the Ombudsman dated 30 June 2012;

(3) Letter from D to the Transport Department dated 1 June 2015; and

(4) Letter from D to the Transport Department dated 14 September 2015.

3.8  On 25 May 2011, P made a town planning application to change P’s Land from “green belt” to “Government, Institution or Community”, but the application was withdrawn on 3 August 2012. A second application was made on 13 October 2014 but was withdrawn on 18 November 2015.

3.9  On 2 October 2015, D sent a letter to Universal Travel Co Ltd, the shuttle bus company engaged by P, to request it not to use the Access Road, but the said request was not complied with.

3.10  Around the time of Chung Yeung Festival in 2017, there were disputes regarding the use of the Access Road by P’s shuttle buses. Eventually, such use was restricted to 2 hours during the festival period:

(1) On 4 August 2017, D notified the Police and the Transport Department that D would regulate and control the use of the Access Road for the upcoming Chung Yeung Festival (which fell on 28 October 2017);

(2) In the latter half of October 2017, D closed off access to the Access Road from 9 am to 5 pm and P's shuttle buses were allowed to use the Disputed Way only for 2 hours in between; and

(3) It is pertinent to note that at the meetings attended by, inter alia, the police, P, D, Hong Yip and District Counsellor(s) on 9 and 19 October 2017, it was P’s own position that it was seeking an indulgence from D to use the Access Road.

3.11  There were further disputes in 2018 around the time of Ching Ming Festival (which fell on 5 April 2018). On 15 March 2018, P’s solicitors demanded D not to block the Access Path during identified periods preceding and following Ching Ming Festival, failing which proceedings would be instituted.

3.12  P commenced the present proceedings on 20 March 2018 and applied for an interlocutory injunction. D agreed to give an interim undertaking not to block the Access Road from 22 March to 30 June 2018.

3.13  On 28 March 2018, P made an application under the Private Columbaria Ordinance Cap 630 for a licence to operate the Columbarium as well as temporary suspension of liability (“TSOL”).

3.14  In 2019, D closed off vehicular access to the Access Road during Ching Ming Festival and closed off both vehicular and pedestrian access during Chung Yeung Festival.

3.15  On 14 January 2020, D requested the Transport Department to convert the lower section of To Fung Shan Road to accommodate two-way vehicular traffic during Ching Ming Festival (ie altering the 1995 Traffic Arrangement). By letter dated 21 February 2020, D informed the Transport Department (copied to P) that it would block vehicular and pedestrian access to the Access Road on certain dates around Ching Ming Festival. Despite expressing some initial reluctance in its letter of 2 March 2020, ultimately the Transport Department adopted D’s proposal to convert the lower section of To Fung Shan Road to two-way vehicular traffic and issued a traffic advice to that effect on 26 March 2020.

3.16  On 25 May 2022, the Government issued a press release, stating inter alia that the Access Road "falls within the private lot of Pristine Villa. There is no requirement under the lease of the lot that the grantees are obliged to open Pak Lok Path for public use" and that "[r]elevant departments will continue to monitor the traffic situation of Pak Lok Path and the effectiveness of the above measures before considering whether resumption of Pak Lok Path is necessary".

3.17  On 16 August 2022, the Private Columbaria Licensing Board (“PCLB”) informed P that its TSOL application was approved in principle, with a validity period of 3 years from 16 August 2022 to 15 August 2025.

3.18  Before turning to the issues identified at §1.10 above, it seems to me pertinent set out the following matters.

3.19  First, prior to the Columbarium coming into operation in 2005, as I understand the evidence, there were the following institutions and residents in the Tao Fung Shan area:

(1) P’s Land was used the then Moroccan consul’s residence;

(2) Tao Fong Shan Christian Cemetery (“Cemetery”);

(3) Tao Fung Shan Christian Centre (which included the Institute of Sino-Christian Studies) (“Christian Centre”);

(4) Lutheran Theological Seminary (“LTS”); and

(5) Yau Oi Tsuen (a village comprised of about 15 village houses with about 50 residents).

3.20  Secondly, it is Mr Wong’s evidence, which is not disputed, that (1) the land over which the Christian Centre is situated belonged to Christian Mission to Buddhists, one of the Original Grantees, until it was gifted to Tao Fung Shan Foundation Limited (“TFSF”), (2) the Cemetery is owned by Rev KL Reichelt who is in the same parish as Christian Mission To Buddhists, (3) the Original Grantees remain owners of 15 flats and 35 parking spaces in Pristine Villa and (4) given the foregoing, any usage by the Christian Centre, TFSF and the Cemetery had always been allowed by D.

3.21  Thirdly, Mr Wong accepts that LTS operates a minibus service for the seminary and that, in recent years, it has operated shuttle bus services during the Ching Ming and Chung Yeung Festivals. But what is clear from the documentary evidence is that these entities, unlike P, have not regarded their use of the Access Path to be as of right.

3.22  Fourthly, it may be observed from the chronology above that soon after the commencement of the operation of the Columbarium in 2006, D already raised its complaints to various governmental departments regarding the use of the Access Road by P and the operation of the Columbarium on P’s Land. In October 2015, D engaged P on the issue of the use of the Access Road, initially through the shuttle bus operator.

3.23  In my view, the above 4 observations, all based on undisputed or indisputable evidence, are particularly germane to the resolution of the issues identified at §1.10 above, to which I now turn.

3.24  As is clear from Mr Leung’s submissions, P pursues Issue 2 (dedication of public right of way) as its primary case and Issue 1 (prescription by way of lost modern grant), in Mr Law’s characterization, has not been pursued with “much enthusiasm”. I will therefore first deal with Issue 2.

4.  Issue 2: Whether there was a legally effective dedication of the Access Road as a public right of way

4.1  Counsel agree that the relevant principles are set out in Kong Sau Ching v Kong Pak Yan & Ors [2004] 1 HKC 119. The relevant principles may be stated to be as follows: To establish a highway at common law by dedication and acceptance, it must be shown (a) that the owner of the land dedicated the way to the public and (b) that the public accepted that dedication, the acceptance normally being shown by user by the public: Kong Sau Ching §14.

4.2  As further pointed out at Kong Sau Ching §14:

“ Dedication may be formal, although this is comparatively infrequent. It is usually inferred from long user by the public, so that user is thus effective to prove both dedication and acceptance. But in order to raise a presumption of dedication there must have been open user as of right for so long a time and in such a way that the landowner must have known that the public were claiming a right. User with the landowner's permission or tolerance is no user as of right, and the court is slow to find a claim of right where the user is attributable to the landowner's indulgence. The user must also have been without interruption by the owner. A practice frequently adopted to disprove any intention to dedicate is to close the way for one day in each year, for this asserts the landowner's right to exclude the public at will.

The length of the enjoyment to be shown depends on the circumstances of the case. Where the circumstances have pointed to an intention to dedicate, 18 months has been held to be enough; where the circumstances are against dedication, a substantially greater period may be insufficient, especially if in recent years there has been no occupier capable of dedicating a highway in perpetuity.” (emphasis added)

4.3  As I understand Mr Leung, P does not rely on express or formal dedication. The question is therefore whether the facts of the present case raise a presumption of dedication. To raise such a presumption, it is necessary to show there is open user as of right for so long a time and in such a way that the landowner must have known that the public were claiming a right.

4.4  Further, to establish public dedication, counsel agree that it is necessary to show that the Government as reversioner under the relevant Government Lease has consented to a dedication, which consent may be inferred: Kong Sau Ching §17.

4.5  It is therefore the case that there are 3 broad issues to canvass (Kong Sau Ching §19):

(1) Is there evidence from which an intention to dedicate on the part of the owners can be inferred?

(2) Is there evidence of an acceptance by the public of any such dedication?

(3) Is there evidence of Government consent to a dedication by the owners?

4.6  In my view, P’s claim premised on dedication of a public way fails. For the reasons set out below, P has failed to establish one or more of the 3 requirements identified in the preceding paragraph.

(i) The 1^st and 2^nd Requirements: Intention to dedicate on the part of D and acceptance by public of dedication

4.7  As pointed out at Kong Sau Ching §14, user by the public is effective to prove both dedication and acceptance. I therefore deal with the 1^st and 2^nd requirements together.

4.8  At P’s Closing Submissions (“PCS”) §§23-25, Mr Leung has clarified that the relevant period for assessment of P’s present cause of action commences in April 1995, namely the completion of the construction of the Access Road. Two periods are identified: (1) the period between the completion of construction of the Access Road in April 1995 and 29 March 2006 (a period of 11 year) and (2) the period between April 2006 and October 2017 (another 11 years). For the first identified period, Mr Leung points out that it was only on 29 March 2006 that D first complained to various governmental departments about the use of the Access Road. For the second identified period, it is said that it was only in the latter half of October 2017 that D in fact limited access to the Access Road. Mr Leung refers to Kong Sau Ching §14 at which a period of enjoyment of 18 months has been said to be enough where the circumstances have pointed to an intention to dedicate.

4.9  In relation to the 1^st requirement, Mr Leung relies on the following matters as evidence from which an intention to dedicate the Access Road as a public way may be inferred: PCS §§11-15.

4.10  First, Mr Leung relies heavily on the Tung Letter for the proposition that the Original Grantees had the intention to dedicate the Access Road as a public way. As mentioned above, the Tung Letter is dated 23 February 1995 and was purportedly issued by Sun Hung Kai Real Estate Agency Ltd on behalf of the Original Grantees. It is in the following terms:

“ On behalf of the grantee, Christian Mission to Buddhists and The Board of Trustees of Chung Chi College, we wish to confirm that the access road as shown as pink stippled black area on Plan No. ST203S/I-DF will be opened to public 24 hours a day after the issuance of Certificate of Compliance from your office. Further, we also undertake the responsibility of all maintenance works relating to the access road and its associate structures.”

4.11  Mr Leung further points out that, as a matter of chronology, the Letter of Compliance was issued on 3 April 1995, shortly after the issuance of the Tung Letter. In addition, the 1995 Traffic Arrangement was put in place on 11 April 1995, by which the Access Road became the only vehicular way for going downhill to leave the Tao Fung Shan area.

4.12  Secondly, Mr Leung submits that D was keen to surrender the Access Road, as shown in the following documentary evidence:

(1) In the minutes of a meeting of D on 8 January 1997, §8.2 records “委員陳先生建議邀請交通及運輸委員會主席程張迎議員出席下次會議，以徵詢管理意見及如何爭取政府收回百樂徑”;

(2) In the minutes of a meeting of D on 4 November 1997, §8.1 records “就政府回覆不考慮收回百樂徑一事，業委一致認為必須向政府提出反對。所持的反對理由為：百樂徑並非只供曉翠山莊之住戶使用，沿道風山路亦有不少村屋及住宅使用百樂徑 [及] 道風山路乃屬單程路，上道風山之人仕必須經由百樂徑落山”; and

(3) D’s letter to the Lands Department dated 2 June 2016 asserts “相信於早年設計及興建時，百樂徑只提供予本山莊及道風山上少量居民及團體使用。曉翠山莊業主自入伙以來，皆盡契約之責任，負起管理及維修之貴任達 20年。現在，請貴署落實收回百樂徑之管理權”;

4.13  Thirdly, whilst it is not disputed that (1) there were at all material times signs erected along the Access Road making clear that it was a private road and (2) Gurkha security guards were engaged by D from 1995 to 2014 to perform certain duties in relation to the Access Road, Mr Leung submits that neither of the foregoing has the effect of negating D’s intention to dedicate the Access Road as a public way.

4.14  Fourthly, D has acted in a manner which is only consistent with having dedicated the Access Road as a public way. In this regard, Mr Leung relies on a modification letter dated 11 August 1993 (“Modification Letter”) which modifies SC[6] (19) of the New Grant, the effect of which is that (1) prior to the surrender of the Access Road, all vehicles can only enter the Access Road through both ends of the Access Road and (2) after surrender of the Access Road, the owners can then enter the Access Road through other openings as shown in the plan (ie r-t-s, v-w-v, x-z-y). Mr Leung points out that the carpark entrances of Pristine Villa are located at “r-t-s”, “v-w-v” or “x-z-y” and it is therefore the case that D and/or the residents of Pristine Villa have used the openings in the middle of the Access Road for many years. He reasons that not only has D breached the New Grant for many years, but this is also evidence that D is presumed to open the Access Way for general public use as if the Access Road had been surrendered under SC(19) of the New Grant.

4.15  In relation to the 2^nd requirement, the only submission made by Mr Leung on the public’s acceptance of the alleged dedication is the effect flowing from the 1995 Traffic Arrangement, namely the Access Road was the only vehicular path to enable vehicles to leave the Tao Fung Shan area.

4.16  In my view, the approach advocated by Mr Leung (set out at §4.8 above) is overly simplistic. As pointed out at Kong Sau Ching §14, in order to raise a presumption of dedication, there must have been open user as of right for so long a time and in such a way that the landowner must have known that the public were claiming a right. User with the landowner’s permission or tolerance is no user as of right and the court is slow to find a claim of right where the user is attributable to the landowner’s indulgence. At the end of the day, the length of the enjoyment which has to be shown depends on the circumstances of the case.

4.17  For the following reasons and having assessed the evidence holistically, I find that during the periods identified by Mr Leung, it cannot be inferred that D had the intention to dedicate the Access Road as a public way. To the contrary, the evidence shows that the use of the Access Road was with D’s permission or tolerance.

4.18  First, as regards the Tung Letter, it is important to set out the relevant context, namely the terms of the New Grant and in particular GC[7] (10) and SC(17):

(1) GC(10) provides: “Any private streets, roads and lanes which by these Conditions are required to be formed shall be sited to the satisfaction of the Director and included in or excluded from the area to be leased as may be determined by him and in either case shall be surrendered to the Government free of cost if so required. If the said streets, roads and lanes are surrendered to the Government, the surfacing, kerbing, draining (both foul and storm water sewers), and channelling thereof shall be carried out by the Government at the expense of the Grantee and thereafter they shall be maintained at public expense. If the said private streets, roads and lanes remain part of the area to be leased, they shall be surfaced, kerbed, drained, channeled and maintained by and at the expense of the Grantee in all respects to the satisfaction of the Director and the Director may carry out or cause to be carried out the installation and maintenance of road lighting for the sake of public interest as required. The Grantee shall bear the capital cost of installation of road lighting and allow free access and egress to and from the area to be leased to workmen and vehicles for the purpose of installation and maintenance of the road lighting”;

(2) SC(17) provides: “The Grantee shall at his own expense and in all respects to the satisfaction of the Director form, construct and surface, with such materials and to such standards, levels, alignment and design as shall be approved by the Director, an access road within the lot over the area shown coloured pink stippled black Plan I annexed hereto (hereinafter referred to as the "Access Road”). Upon compliance with these Conditions in all respects to the satisfaction of the Director the Grantee shall on demand of the Director surrender the Access Road to the Government free of costs and of any encumbrances.”

4.19  The combined effect of GC(10) and SC(17) is as follows: (1) the grantee was obliged to build the Access Road to the requisite standards, specifications and design; (2) unless the Director made a demand for surrender, the Access Road remained part of D’s Land and (3) whilst the Access Road remained part of D’s Land, the responsibility to maintain it remained on the grantee and (4) whilst the Access Road remained part of D’s Land, the Director may install and maintain road lighting for the sake of public interest.

4.20  Read against the above context, I agree with Mr Law’s submissions that the Tung Letter does not have the effect of evincing an intention to dedicate the Access Road as a public right of way. Where the Tung Letter expressly undertook the responsibility of all maintenance works relating to the Access Road, it plainly contemplated that the Access Road would remain part of D’s Land as per the terms of GC(10). In my view, the Tung Letter should be understood as only giving permission for the public to use the Access Road. In the alternative, the Tung Letter, on its own, is at best equivocal[8].

4.21  Secondly, whilst it is true that the owners of Pristine Villa had expressed their views at various meetings of D their desire for the Government to take over the Access Road and pay for its maintenance, I agree with Mr Law’s submissions that the foregoing does not mean that in the absence of taking over by the Government, D nevertheless intended for the Access Road to be used as a public road. I accept Mr Wong’s evidence that the use of the Access Road was always controlled and regulated by D through (1) multiple signs erected along Access Road (since the completion of its construction) making clear that it was a private road, (2) the stationing of security guards and (3) installation of CCTV cameras along the Access Road since 1995. It seems to me clear from the context that the owners’ wish to have the Access Road taken over by the Government was motivated by monetary reasons (to rid D of the monetary obligations to maintain the Access Road) as opposed to an unqualified wish to dedicate the Access Road as a public way.

4.22  Thirdly:

(1) In so far as Mr Leung submits that the “private road” signs were put up after the Access Road had been dedicated by the Tung Letter and therefore are of no effect (PCS §15), for the reasons set out above, I am of the view that the Tung Letter does not have the effect of evincing an intention to dedicate. To that extent, the existence of the “private road” signs is entirely consistent with my reading of the Tung Letter, namely, the Access Road remained part of D’s Land; and

(2) As regards Mr Leung’s submission that the Gurkha security guards’ duties did not extend to restricting or preventing vehicles from travelling on the Access Road, I accept Mr Law’s submissions the fact that D had engaged certain measures (including the hiring of Gurkhas) to regulate the use of the Access Road is sufficient to show that there was no intention to dedicate it as a public way. In this regard, the Gurkhas security guards were contractually required to perform certain duties in respect of the Access Road, including ensuring (a) no vehicle was parked along the Access Road and (b) the Access Road was free from any kind of obstruction and smooth running of traffic.

4.23  Fourthly, whilst Mr Law has not dealt with the Modification Letter, it is only part of the relevant factual matrix. In my view, I do not believe the issue raised by Mr Leung in relation to the Modification Letter has the effect of outweighing the other evidence on my conclusions set out at §4.17 above.

4.24  Fifthly, as pointed out by Mr Law:

(1) The mere fact that members of the public may have used the Access Road to access various areas in the Tao Fung Shan area does not necessarily equate to acceptance of a dedication of a public right of way. This is particularly so, given the various facilities and measures put in place by D to regulate and control the use of the Access Road. Rather, it is more consistent with D granting permission from time to time to outside users to use the Access Road which remained a private road, and these grants of permission being accepted by those users. In this regard, as underscored by the 4 observations set out in the preceding section (§§3.19-3.22 above), the evidence is that entities other than P did not regard their use of the Access Road to be as of right.

(2) On the documentary evidence, there was no objection raised by LTS, the Cemetery or TFSF against D’s limiting access to the Access Road. Another example is, by a letter dated 4 March 2019, an organisation called “Wheel for Oneness”, sought permission to use the Access Road as part of a distance running competition and to set up a recovery station for participants. Apart from adducing evidence that some other entities had used the Access Road, P did not adduce any evidence to show that those other entities had regarded their use of the Access Road to be as of right.

(3) More importantly as set out at §3.10 above, even in October 2017 P was still asking for D’s indulgence to use the Access Road during Chung Yeung Festival. The minutes of those meetings (prepared by P’ own staff) record variously that “[P] requested to seek indulgence from [D] to use the Access Road” and “Dawn [one P’s representatives at the meeting] tried to bargain the time allowance and frequency of the shuttle-bus, but in vain. Eventually, [P] accepted the proposal from D.” It must be emphasized that the matters set out §3.10 above represents the first occasion D sought to limit P’s access and P’s then position was then D had the right to do so.

4.25  Sixthly, it is plain from Mr Leung’s identification of the two periods (§4.8 above) that he realistically accepts D’s complaints to various governmental departments on 29 March 2006 as inimical to the contention that D had intended to dedicate the Access Road as a public way. Two observations may be made. (1) In all the circumstances of the case, I am unable to accept Mr Leung’s proposition that P can take advantage of the period before P started to operate the Columbarium (ie the period when P’s Land was used as the residence of the then Moroccan consul). During that period, the use of the Access Road by others (including by the then Moroccan consul residing on P’s Land) was, more likely than not, only tolerated by D. As soon as (or soon after) P started its shuttle bus service, D complained to various government authorities (see the preceding paragraph). (2) As pointed out at Kong Sau Ching §14, it takes only ceremonial act, for example by closing the way for one day each year, to disprove any intention to dedicate. The present case is a far cry from the facts found at Kong Sau Ching §§51-52:

“ [51] In summary, I find that the Way (including the Disputed Way) has been used by vehicles since the 1950s. The flow of traffic through the Disputed Way would have been sporadic during the 1950s when motor vehicles were a comparatively rare sight in Hong Kong. By the 1960s, passage of motor vehicles through the Disputed Way would have been more common.

[52] The owners of Lot 364A must have been aware of this traffic, but did not seem to do anything to impede or hinder it. I reject Kong Sik Yau’s evidence that vehicles only passed through the Disputed Way with his permission. From the fact that the fence and (later) the wall around House 99 on Lot 364A was set back from the boundaries of Lot 364A, thereby accommodating and demarcating the Disputed Way through Lot 364A, I infer that, far from objecting to the passage of motor vehicles through the Disputed Way, the owners of Lot 364A accepted and acknowledged such passage.”

4.26  For the above reasons, I find that during the periods identified by Mr Leung, it cannot be inferred from the facts found that D had the intention to dedicate the Access Road as a public way. To the contrary, the evidence shows that the use of the Access Road was with D’s permission or tolerance and the public, including P until 2017, accepted that to be the case.

(ii) The 3^rd Requirement: Government consent to a dedication

4.27  Further, I am of the view that P has failed to satisfy the 3^rd requirement.

4.28  As I understand Mr Leung, he relies on the follow matters to infer that the Government had consented to the alleged dedication:

(1) Various government service utilized the Access Road as in the case of Kong Sau Ching (§§57-59);

(2) GC(10) of the New Grant provides that “the Director may carry out or cause to be carried out the installation and maintenance of road lighting for the sake of public interest as required”;

(3) Between December 2011 and March 2015, the Transport Department approved the operation of the shuttle bus service for the Columbarium;

(4) In addition, the letter dated 2 June 2006 from District Lands Office (DLO) also indicated the consent of the Government: “另外，雖然百樂徑是位於曉翠山莊內的一條私家路，基於現有交通運作需要，此道路須要開放給公衆行駛。故此，貴法團不應阻止該 24 座小巴通過百樂徑。至於該 24 座小巴是否合法經營，相信運輸署會回覆你。” and

(5) The 1995 Traffic Arrangement was put in place.

4.29  In my view, the above (incomplete) matters are insufficient to infer Government consent. As submitted by Mr Law, the evidence shows that the Government has repeatedly and expressly disavowed the alleged dedication of the Access Road as a public right of way, despite D’s requests.

4.30  The documentary evidence referred to by Mr Law include:

(1) By a letter dated 9 January 1996 to the Original Grantees, the Lands Department (Shatin District Land Office) acknowledged that the Access Road was “presently a private road”, and thus requested the Original Grantees to install the street name plates;

(2) Consistent with the above, the meeting minutes of D repeatedly mentioned that the Government refused to take over the Access Road as a public right of way. This can be seen from § 2.2 of the 25 March 1996 minute, §§5.6, 7.1, 8.1 and 8.2 of the 8 January 1997 minutes and §§ 8.1, 8.2 and 9.4 of the 4 November 1997 minutes;

(3) By a letter dated 2 June 2015 to the Director of Lands, D specifically requested the Government to take over ownership of the Access Road (“現在，請貴署落實收回百樂經之管有權”，“本法團不得不請貴署盡快安排收回百樂經之管有權”)，as it was unfair for D to have to pay for the costs of upkeep when the Access Road was being heavily used by vehicular traffic to and from the Columbarium. D requested this issue to be resolved before P’s rezoning application for the Columbarium could be approved;

(4) By its reply letter dated 10 June 2015, the Lands Department (Shatin District Lands Office) emphasized that under Special Condition (17) of the New Grant, D was only obliged to surrender the Access Road to the Government “on demand” of the Director of Lands. The letter did not say that any demand had ever been made, but instead stated that the Lands Department would consult other relevant departments as to whether they would demand the surrender of the Access Road;

(5) By a further reply letter dated 22 September 2015, the Lands Department (Shatin District Lands Office) stated that the government departments “advised that they will not take over Pak Lok Path at the present stage”;

(6) In some of the letters from the Transport Department granting approval for operation of shuttle buses to and from P’s Land, the Department made clear that the Access Road was a private road, and/or that the shuttle bus company had to first obtain D’s approval before using the Access Road: letter dated 31 August 2015, letter dated 30 September 2015, letter dated 30 October 2015, letter dated 27 November 2015, letter dated 31 December 2015 and letter dated 22 January 2016;

(7) By a letter dated 17 February 2021, the Lands Department (Shatin District Survey Office) requested permission for its staff to “enter the property which you own/occupy situated at: Pak Lok Path, to make survey measurements”. As submitted by Mr Law, plainly, it would not have been necessary for the Lands Department to request permission if it had consented to the dedication of the Access Road as a public right of way.

(8) By a letter dated 5 October 2021, the Water Supplies Department similarly stated that it had “no plan of acquisition to Pak Lok Path”; and

(9) As stated at §3.16 above, on 25 May 2022, the Government issued a press release recording certain questions asked by a legislator regarding the Access Road and the Columbarium, and the responses of the then Secretary for Development, Michael Wong. The Secretary stated that “Pak Lok Path in Tai Wai falls within the private lot of the Pristine Villa”; and that “[c]urrently the said road is jointly owned by the owners of Pristine Villa”. In answer to the question of whether the Government had plans to resume Pak Lok Path, the Secretary said that “Pak Lok Path falls within the private lot of Pristine Villa. There is no requirement under the lease of the lot that the grantees are obliged to open Pak Lok Path for public use”. He further referred to special traffic arrangements and certain feasibility studies being conducted and stated that “[r]elevant departments will continue to monitor the traffic situation of Pak Lok Path and the effectiveness of the above measures before considering whether resumption of Pak Lok Path is necessary”.

4.31  Mr Leung was unable to provide an answer to the matters raised in the preceding paragraph.

4.32  Conversely, I agree with Mr Law’s answers to the specific matters raised by Mr Leung:

(1) In relation to Mr Leung’s reliance on the fact that various government services (eg the post, garbage refuse collections, water supplies, emergency services etc.) have used the Access Road. I agree with Mr Law’s submission that the mere fact that D has permitted these services to use the Access Road, does not convert it into a public road. In any event, as pointed out at §4.30(7), the Lands Department did request permission;

(2) As regards the provision made in GC(10) for the installation of road lighting for the sake of public interest such provision is made in respect of the scenario that the Access Road remained part of D’s Land. As submitted by Mr Law, the fact that it is necessary for GC(10) to provide expressly for the Director’s right to install and maintain lighting, fortifies rather than undermines the above conclusion. If the Access Road was already dedicated as a public right of way, the Government (Director) would not need to expressly reserve its right to install lighting;

(3) Mr Leung’s reliance on the Transport Department’s approval of P’s shuttle bus service has been dealt with at §4.30(6) above;

(4) As regards the 2 June 2006 letter (§4.28(4) above), I agree with Mr Law that it falls far short of indicating consent by the Government. Instead, the letter recognized that the Access Road was a private road. In any event, it cannot detract from the numerous correspondence above by which the Government expressed its stance in clear terms; and

(5) In relation to the 1995 Traffic Arrangement, I agree with Mr Law that it is merely a traffic arrangement by the Transport Department which can be changed. As pointed out at §3.15 above, the 1995 Traffic Arrangement was in fact changed at the request of D for Ching Ming Festival 2020. Whilst P has questioned the efficacy of the change, the fact that the 1995 Traffic Arrangement was changed (despite initial reluctance) at the request of D is clear evidence that the Government did not regard D not having a right to close off the Access Road.

4.33  Further, as pointed out by Mr Law, Mr Chan agreed in his oral evidence that he had no factual basis to say the Government had demanded the surrender of the Access Road, or that there was in fact a surrender of the Access Road. This at least strongly suggests that the Government would not have consented to any dedication of the same road as a public right of way.

4.34  For the above reasons, I find that, on the evidence, there was no Government consent to a dedication by D.

4.35  I therefore determine Issue (2) against P. I find that there was no effective dedication of the Access Road as a public right of way.

5.  Issue 1(a): Whether the alleged right of way is capable of being an easement

5.1  The issue here is whether P can satisfy the second characteristics of easement as stated at Regency Villas Ltd v Diamond Resorts Ltd [2019] AC 553 §35, namely “the easement must accommodate the dominant easement” with the element of “propinquity” so the servient tenement must be close enough to the dominant tenement to confer a practical benefit on it.

5.2  Mr Law does not seriously contest Issue 1(a). He merely contends that it is for P to show that P’s Land and D’s Land are close enough such that the right of way over the Access Road confers a practical benefit on P’s Land.

5.3  I accept Mr Leung’s submissions that P had relied on the Access Road for its benefit, the Access Road being the only means for vehicles to leave the Tao Fung Shan area when the 1995 Travel Arrangement remained in place. I answer Issue 1(a) in the affirmative.

6.  Issue 1(b): Whether an easement arose by prescription by way of lost modern grant

6.1  The law on prescription by lost modern grant has been usefully summarized in Lee Kok Che & Ors v Royal Mortgage Ltd & Ors [2023] HKCFI 648:

“ [34] As explained by Lord Millett in China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 at §41, lost modern grant is the only method by which rights of way and other easements may be acquired in Hong Kong in the absence of an actual grant, express or implied.

[35] The doctrine of lost modern grant was developed in the UK with recourse to a “presumption … of a grant made in modern times, that is to say after 1189 but before the period of enjoyment relied on, and which had since been lost” – China Field, §46.

[36] As to the nature of the user required to enable a right of way to be acquired pursuant to the doctrine, Lord Millett at §71 of China Field explained that:

‘ Such user must be as of right, that is to say not by force, stealth or licence of the owner of the dominant tenement, and must have continued without interruption for at least 20 years.’

…

[38] On the test to be applied, Lord Millett has further explained, in the context of the public policy behind, that:

‘ … the test does not depend on the view which an assiduous reader might derive from the law reports, but on what ordinary people may reasonably expect the law to be. The idea that long de facto and peaceful enjoyment of a right over another’s land is no doubt based on public policy, but it also accords with people’s reasonable expectations. There is no reason to think that landowners in Hong Kong have refrained from disturbing their neighbours’ enjoyment of a right over their land because of their belief that such enjoyment, however long continued, could never mature into a legally enforceable right. Rather the boot is on the other foot. People who openly and peaceably exercise a right over their neighbour’s land for more than 20 years without interruption surely expect to be allowed to continue to do so and may have made their arrangements accordingly.’ (Emphasis added)

[39] The doctrine has recently been applied by Coleman J in Tai Sang Feeds Company Limited & Ors v Sharply Development Limited [2021] HKCFI 163, wherein the elements required to be established, and the nature of any right so acquired, have been reiterated at §§27 and 28, that:

‘ 27. If a plaintiff relies on such a right acquired by prescription, necessary particulars must be pleaded and proved to show the alleged use for the continuous period of not less than 20 years, which must be uninterrupted: see Cheung Leung Tak v Cheung Chi Hung [2018] 5 HKLRD 579 at §38. The requirement for the alleged use for the continuous period of not less than 20 years does not require the claimant to establish that he himself has used the land for that period, so long as he and any predecessors in title I have used the land for that period.

28. If the owner of the dominant tenement can establish a right of way has been acquired, it does not follow that he has an absolute right to use each and every portion of the right of way, but is only entitled to complain of substantial interference with that right by the owner of the servant tenement: see Lee Tai Property Development Ltd v Incorporated Owners of Leapoint Industrial Building [1996] 1 HKC 193 at 198B-D.’ ”

6.2  At PCS §§32, Mr Leung contends that P has shown more than 20 years of uninterrupted user as of right from completion of the Access Road in April 1995 to the blockage in October 2017 (22 years).

6.3  I do not agree with Mr Leung, for the following reasons.

6.4  Prior to operating the Columbarium, between 1995 and 2004, P’s Land was used as the residence of the then Moroccan consul and they must have utilized the Access Road for vehicular passage to leave the Tao Fung Shan area.

6.5  The burden is on P to show that such use was, amongst other factors, nec precario (without permission from the owner). Apart from a bare assertion (and not based on any personal knowledge) of Mr Chan, there is simply no evidence from P to show that that was the case, especially given the existence of “private road” signs since the completion of the Access Road. I accept Mr Law’s submission that even if there was any use of the Access Road from 1995 to 2004 by the residents on P’s Land (or their visitors), that use would have likely been no more than sporadic, tolerated out of neighbourly good relations, and/or resulting from temporary permission(s) from D. As noted at Sara and Dovar, Boundaries and Easements, 7^th Ed at §15-023:

“ Permission is not the same as toleration. Where there has been no actual permission the exercise of the right will be sufficient. But even in such circumstances the court will look at the user to see whether it can be seen as being as of right. Where it is casual in its nature the proper interpretation may be that it is being exercised as a result of toleration by the owners, but where it has been used regularly the fact that the servient owner tolerated it because he did not object to limited exercise of the way does not stop time from running.” (emphasis added)

6.6  Indeed this foregoing is precisely the evidence of Mr Wong, which I accept[9]:

“ Unlike the Columbarium's use of the Access Road since 2005, the neighbouring residents/inhabitants in the To Fong Shan area would very rarely traverse the Access Road by vehicles until recently, and even on the very rare occasions when they did travel over the Access Road by vehicles, they did so rarely and have not caused any particular damage to the Access Road or inconvenience to the Residents. In such circumstances, it stands to reason for the Defendant/Residents to accord a degree of tolerance and indulgence to them when they wanted to use the Access Road.” (emphasis added)

6.7  In these circumstances, the 20-year period can only begin to count from 2006 when P started to organize shuttle buses, in which case the requisite period obviously would not have elapsed by October 2017.

6.8  In my view, Issue 1(b) must be answered in the negative. No easement in respect of the Access Road had arisen by prescription by way of lost modern grant. As a result, it is strictly unnecessary to deal with Issue 1(c) and Issue 3.

6.9  For completeness, I deal with them briefly.

6.10  In relation to Issue 1(c), both counsel refer to the principles set out in McAdams Homes Ltd v Robinson [2005] 1 P&CR 30 and applied in Wan Yuk Wing v Wong Kwok Hing Patrick [2010] 4 HKC 151. In gist, the issue as to whether an easement could continue to be enjoyed following some development on the dominant land should be determined by answering 2 questions: (1) whether the development of the dominant land represented a “radical change in the character” or a “change in the identity” of the site, as opposed to a mere change or intensification in the use of the site and (2) whether the use of the site as redeveloped would result in a substantial increase or alteration in the burden on the servient land.

6.11  I do not understand Mr Leung to have argued that the operation of the Columbarium on P’s Land, when it was previously used as the residence of the then Moroccan consul, did not present a radical change in character. Mr Leung suggests, however, that there was not substantial increase or alteration in the burden on the servient land. I accept Mr Law’s submissions set out at §§65 -66 of D’s closing submissions (“DCS”) that the frequency and usage of the shuttle buses operated by P represented a substantial increase in the burden on the Access Road. Had it been necessary, I would have held that any easement would have been extinguished or suspended.

6.12  In relation to Issue 3, the issue is whether the legality of the operation of the Columbarium would have the effect of denying P relief. Both counsel refer to Loyal Luck Trading Ltd v Tam Chun Wah [2007] 4 HKLRD 917 in which the Court of Appeal rejected the defendant’s defence of illegality on the basis that (1) the use of the Access Road itself was not unlawful and (2) the plaintiff did not need to rely on the illegality but Mr Law emphasizes that that case should be distinguished on the basis that the present case is concerned with unclean hands as opposed to illegality, bearing in mind that the relief sought by P are equitable in nature.

6.13  I do not agree with Mr Law. Like Loyal Luck, the use of the Access Road is not unlawful, and where in that case the illegality did not operate as a defence, it seems to me that I should be slow to use it as a justification to deny relief. In any event, as matters present stand, P has obtained TSOL.

7.  Issue 4: D’s Counterclaim

7.1  Mr Leung did not deal with D’s counterclaim in the PCS. When invited by the court, the oral submissions made were mainly directed at D’s counterclaim for damages.

7.2  In the light of my above conclusions that P has failed to establish an easement in respect of the Access Road or a dedication of the Access Road as a public right of way, I am satisfied that P is liable for trespass. I am further satisfied that it is appropriate to grant the declaration and injunction sought by counterclaim relief (1) and (2): Cheng Lai Yin v Liu Yee Mui [2022] HKCFI 940 §33, in particular the principle set out in that case that for a claim in trespass, damage suffered is not a pre-requisite to the grant of an injunction, nor is the triviality of the interference a sufficient reason to justify a departure from the general rule of granting injunctions. In a case concerning trespass to land (in particular for threats of trespass and acts of trespass in the future), the court is concerned with the protection of a property right which, if not protected by an adequate remedy becomes diminished.  I also note in particular that D has quite reasonably limited the relief sought to vehicular traffic only and has not included pedestrian traffic.

7.3  I am also satisfied that P is liable for private nuisance. Mr Law refers to Cheng Lai Yin §51. It is stated there that a private nuisance is committed by a person doing, on his own land, something which he is lawfully entitled to do but the consequences of which extend to the land of his neighbour by (i) causing an encroachment on his neighbour’s land; (ii) causing physical damage to his neighbour’s land; or (iii) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land. I accept Mr Law’s submission that P’s liability for private nuisance is established, as the unauthorized use of the Access Road by those going to P’s Land amounts to private nuisance by at least causing physical damage to the Access Road. I also accept Mr Law’s reliance on Pierhead Garden Management Co Ltd v The I/O of Pierhead Garden [2021] HKCFI 678 for the proposition that general damages may be award for the inconvenience suffered as a result of nuisance and interference with property rights.

7.4  I am however not satisfied that I should accede to Mr Law’s invitation to award general damages in the sum of HK$800,000. D’s pleaded case on damages is as follows:

(1) The damages for trespass include maintenance and repair costs incurred by D for the maintenance and repair of the Access Road caused by the use of it for vehicular traffic by P;

(2) The claim for damages of nuisance is advanced on the basis that P’s use of P’s Land for the operation of the Columbarium has resulted in (1) congestion at the Access Road and (2) damage to the Access Road by reason of P’s excessive use of it.

7.5  No evidence has been adduced for the foregoing complaints. There is no evidence on the precise degree of congestion and Mr Wong was not able to tell me the extent of the maintenance and repair costs. In my view, D has failed to prove its counterclaim for damages.

8.  Disposition

8.1  In the premises, I dismiss P’s claim and enter judgment in favour of D for its counterclaim for a declaration and an injunction as sought in counterclaim relief (1) and (2).

8.2  I also make a costs order nisi P is to pay to D the costs of the action and the costs of the counterclaim to be taxed if not agreed with a certificate for 2 counsel. Despite D’s failure to prove its claim for damages, my provisional view is that the time spent on, and the extent of, the materials relevant to the monetary counterclaim do not warrant a reduction of D’s costs entitlement.

Annexure A

Annexure B