As Singapore has a land area of just 718.3 square kilometres,16 planned development of its built environment is essential. This was recognized from the founding of the modern settlement, with Sir Stamford Raffles conceptualizing the first town plan for the Singapore River’s environs and issuing instructions concerning it to a newly appointed Town Committee on 4 November 1822.17 Today, the accepted method of ensuring orderly development is to produce and regularly update a master plan, which is drawn up based on analyses of the nation’s physical, social, and economic conditions.18 The first Master Plan was prepared by the Singapore Improvement Trust19 between 1952 and 1955 and approved by the Governor in Council on 5 August 1958; it formed the basis for successive Master Plans.20 On 1 February 1960, the Planning Act 1959 21 came into force, providing, among other things, for the Master Plan to be reviewed every five years22 by the “competent authority” charged with responsibility for implementing the Act, who is the Chief Planner of the Urban Redevelopment Authority (URA).23
The Master Plan consists of information on how land may be used, approved maps, and a written statement that aids the interpretation of the Master Plan by summarizing the Master Plan’s main proposals and providing descriptive matter to illustrate the proposals.24 The Master Plan 2014 is the current version,25 and its written statement deals with matters such as zoning, plot ratios, and factors to be taken into account when approving development applications.26 Conservation is integral to the planning process, and the Minister for National Development is empowered to designate in the Master Plan “any area… of special architectural, historic, traditional or aesthetic interest” as a conservation area, which may comprise a whole area, a group of buildings, or even a single building.27 The URA issues guidelines for the conservation of buildings or land within a conservation area and for the protection of their setting.28
Each Master Plan guides medium-term development over ten to 15 years,29 and is regarded as an end product which is adhered to strictly in controlling development.30 For longer term planning over a 40–50 year horizon and to guide the updating of Master Plans, the URA prepares Concept Plans aimed to “ensure[ ] there is sufficient land to meet long-term population and economic growth while providing a good quality living environment”. Reviewed every ten years, Concept Plans are not mandated by the Planning Act and are thus purely advisory.31 The URA commenced a review for the Concept Plan 2011 in January 2010.32 The process involved extensive public consultation, including a lifestyle survey33 and focus groups on “quality of life”34 and “sustainability and identity”.35
Amendments to a Master Plan must be proposed by the URA and approved by the Minister.36 A proposal for a material37 amendment must be advertised in the Government Gazette and in one English, Chinese, Malay, and Tamil newspaper circulating in Singapore specifying a period of not less than two weeks within which the public may make objections and representations concerning it.38 The Minister is required to give any objectors or representors an opportunity to appear before a hearing or public inquiry, and to take into account such objections and representations and the findings of the hearing or public inquiry when deciding whether to approve or reject the proposal.39 Therefore, at least in theory the processes and legal procedures for keeping Concept Plans and Master Plans up to date arguably promote spatial justice.
However an unexpected incident has cast doubt on the effectiveness of the Master Plan amendment procedure. In September 2011, the Government announced that it would be building a road across two adjoining historic cemeteries, Bukit Brown Cemetery and Seh Ong Cemetery, in order to alleviate traffic congestion in the area.40 Together, these two cemeteries form part of what is believed to be the largest Chinese cemetery outside China.41 Although exhumation works began in October 2013,42 the road only appeared on the URA’s Draft Master Plan 2013 launched on 20 November.43 The Singapore Heritage Society (SHS) and members of the All Things Bukit Brown and SOS Bukit Brown civil society communities submitted objections to the proposal to amend the Master Plan to include the road.44 In addition, the Nature Society (Singapore) (NSS) sent in an extensive report commenting on many issues of environmental concern relating to the Draft Master Plan, including conservation of the marine environment, swamps, and primary and secondary forests; the encroachment of development on nature areas; and the importance of environmental impact assessments.45 On Bukit Brown Cemetery, the Society referred to its earlier conservation proposal on the matter,46 and stressed that the cemetery is an “important wildlife habitat” which provides a nesting ground, especially for birds. Surveys it had conducted revealed the presence of endangered species of birds and mammals.47
About six months later a number of the representors, including the SHS and members of SOS Bukit Brown,48 received the same standard-form letter dated 5 June 2014 from the Ministry of National Development (MND) stating that “the conservation of Singapore’s heritage is factored in our land use plans… [b]ut there will be occasions when trade-offs will need to be made in our land use decisions”. The letter noted that the justifications for the road “have been presented and debated in Parliament. The final road alignment was determined with inputs from agencies, such as the National Parks Board on biodiversity and the Public Utilities Board on drainage in the area.”49 The next day, 6 June, the Master Plan 2014 was gazetted without any hearing or public inquiry having been conducted in relation to these representations.50
The URA gave a similar response to the NSS’s view in its December 2013 report that the Master Plan’s commitment to protecting biodiversity was “embarrassingly negligible” because by 2030 only 4.4 percent of Singapore’s land area – a “shocking niggardly contribution” – would be put to such use. This figure excluded reservoirs and ‘nature areas’ which are only kept intact while not required for development.51 In comparison, Target 11 of the Aichi Biodiversity Targets adopted pursuant to the United Nations Convention on Biological Diversity,52 which Singapore ratified in 1995, states:
By 2020, at least 17 per cent of terrestrial and inland water areas, and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes.53
In reply, the URA noted that:
[l]and is a scarce resource in Singapore, and drafting the Master Plan for land use requires a balanced accommodation of the many competing needs that Singapore has, both as a country and as a city… . Above all, we need to ensure that the fundamental and basic needs of our citizens are met first.
Given these constraints, when assessing the land areas involved in protecting Singapore’s biodiversity the Authority justified taking into account nature areas potentially subject to future development, man-made parks and park connectors, roadside plants, sky-rise greenery, and forested defence training areas.54
For a parliamentary sitting the following month on 9 July, Nominated Member of Parliament Eugene Tan filed the following questions:
To ask the Minister for National Development (a) if he can provide a summary of the feedback, objections and representations received on the Draft Master Plan 2013; (b) whether hearings or public inquiries have been held prior to the gazetting of the Master Plan 2014 on 6 June 2014; and (c) if not, whether there are any plans to hold such hearings and public inquiries.55
The Minister, Khaw Boon Wan, provided a written response. Among other things, he said:
We conducted one hearing where the feedback raised new matters which were substantive, which we required further clarifications on and which pertained to a new proposal in the Master Plan. With the gazette of the Master Plan, the Draft Master Plan process has been completed.56
The MND’s response to the objections to the Draft Master Plan, and the Minister’s assertion that a hearing can be dispensed with if matters that are not “new” and “substantive” are raised, are surprising as they seem to fly in the face of the relevant legislation, the Planning (Master Plan) Rules,57 which expressly require a hearing unless the objections or representations received are frivolous.58 The courts had no opportunity to rule on whether the MND had interpreted the Rules correctly as no representor commenced judicial review proceedings to challenge the Minister’s decision not to convene a hearing or public inquiry.
This incident highlights two weaknesses of the Master Plan amendment procedure which undermine its utility in ensuring public participation in the process. First, drastic changes to the land can be planned and executed without a prior amendment to the Master Plan. Secondly, based on the manner the MND currently interprets the law, it is not a given that a hearing will be held to allow for public consultation on proposed changes to the Master Plan. In addition, it should be noted that the URA may prepare certified interpretation plans on a scale larger than the maps in the Master Plan to provide more detailed interpretation of the latter.59 Such plans require no approval by the Minister, and there is no statutory procedure for members of the public to make representations regarding them.
Suffering from a similar shortcoming is the procedure for obtaining approval to develop land60 (planning permission) and to carry out works within a conservation area61 (conservation permission).62 Applications are generally dealt with by the URA,63 though the Minister may direct the Authority to refer specific applications or a class of applications to him.64 In general, applications must be decided in conformity with the Master Plan and any relevant certified interpretation plan,65 unless the Minister approves otherwise in certain circumstances detailed in section 14(2) of the Planning Act. It is clear that works requiring planning or conservation permission can have a significant impact on people living or working in the vicinity of the site in question, and perhaps further afield as well. For instance, a material change in the use of a building requires permission, and one can well imagine that if the owner of a building sought permission for it to be modified from a residence to commercial premises, owners and occupants of neighbouring buildings might have something to say about whether permission should be granted. Nonetheless, the Act is silent on the matter.
This means an aggrieved person must attempt to seek a remedy either on the basis of administrative law rules articulated by courts over time as part of the common law, or the Constitution.66 As regards administrative law, since exercises of power by the URA and the Minister under the Act spring from a legal source and serve public functions, they are amenable to judicial review by the High Court.67 Judicial review of administrative action is the means by which the Court asserts jurisdiction to supervise public authorities;68 the Court may, for instance, issue a quashing order to quash actions and decisions taken by authorities in breach of administrative law, a prohibiting order to prevent them from acting contrary to administrative law rules, and/or a mandatory order to direct that they reconsider matters in light of the correct rules. These are known as prerogative orders. However, people potentially affected by development work only remotely – for example, those who feel a new building will blight the landscape and thus wish to contest any planning permission for it, but who do not live near the proposed site – may have difficulty showing they have sufficient standing to apply for judicial review. This is examined in Part II.A.3 below.
In addition, the Court’s role in administrative law is circumscribed, as Justice V.K. Rajah noted in Wong Keng Leong Rayney v. Law Society of Singapore:
Judicial review is almost invariably limited to examining, inter alia, whether the tribunal has exceeded its jurisdiction, whether there has been an abuse of discretion or a failure of natural justice, and whether the tribunal has acted irrationally, unreasonably or in bad faith. In other words, it hinges on the legality of the decision. … [T]he reviewing court cannot substitute its decision for that of the administrative body under review. This is because the task of determining the rights of the parties has been statutorily conferred on the administrative body, not the court. The reviewing court may declare that the task has been performed badly in law but it cannot take the further step of actually performing the task itself.69
To my knowledge, there are no reported cases involving a challenge by a third party against development work being approved. A 2009 case with different facts, Borissik v. Urban Redevelopment Authority,70 illustrates how difficult it is for such a claim to succeed. In the case, the applicant took out judicial review proceedings against the URA because the Authority had declined to approve renovation works which she and her husband wished to carry out on their home. The High Court dismissed the application, holding that, among other things, the applicant had failed to prove the URA had taken into account extraneous objectives, behaved irrationally, or made any representation to the applicant giving rise to a legitimate expectation that permission to execute the works would be given. Since the URA had not acted in breach of any administrative law rule, it was not for the Court to determine whether the works should have been approved or not – that was a decision for the Authority alone.
Let us assume that the URA has approved an application to build a Mass Rapid Transit (MRT) station in a location that some people find difficult to access. Might an aggrieved person bring a case against the Authority alleging that he or she has been discriminated against, in the manner that the plaintiffs in the Bus Riders Union case did?71 There is no anti-discrimination legislation in Singapore akin to Title VI of the Civil Rights Act of 1964, so a judicial review application might have to be brought alleging a breach of Article 12(1) of the Constitution, which states: “All persons are equal before the law and entitled to the equal protection of the law.” Current case law indicates that the courts apply a legal test to Article 12(1) which is highly deferential to the executive and legislative branches of government. In order to establish that Article 12(1) has been infringed, an applicant must show that he or she belongs to a class of persons that has been treated differently from one or more comparable classes; and that either his or her class has not been clearly defined, or there is no rational relation between the class and the object of the law.72 Most cases are likely to turn on the rational relation limb of the test, which is not difficult for the Government to satisfy as a mere rationality standard is applied, particularly as the Court of Appeal has said that an applicant must rebut a “strong presumption of constitutionality”73 in order to succeed. For example, if the URA can show that its approval for the construction of an MRT station in a particular place is not irrational but based on certain grounds such as the transportation needs of people living in the vicinity, then its decision cannot be regarded as violating Article 12(1). Indeed, in the recent decision of Lim Meng Suang v. Attorney-General,74 the Court of Appeal expressed the view that:
[a]lthough the absence of such a rational relation can take many forms, it seems to us that the requisite rational relation will – more often than not – be found. This is because… there is no need for a perfect relation or ‘complete coincidence’ [emphasis added] between the differentia in question and the purpose and object of the statute concerned. … [T]he relation need only be a rational one.75
Eng Foong Ho v. Attorney-General 76 involved a claim by devotees of a temple espousing Buddhist, Confucian, and Taoist beliefs that the Collector of Land Revenue had violated Article 12(1) by compulsorily acquiring the land on which the temple stood pursuant to the Land Acquisition Act,77 but leaving nearby land belonging to a Christian church and a Hindu mission untouched. The reason provided for the acquisition was the construction and comprehensive redevelopment of the MRT’s Circle Line. The Court of Appeal noted that the appellants had conceded that the Collector had acted in good faith and had not adduced any evidence of arbitrary action on the Collector’s part.78 It found that the Collector’s decision had been “based solely on planning considerations”.79 There had been no “intentional and arbitrary discrimination”80 by the Collector. This stringent standard is favourable to the Government, and hence not easy for an applicant to establish.
I referred earlier to the possibility that spatial justice might be an aspect of Article 9(1) of the Constitution, which provides that “[n]o person shall be deprived of his life or personal liberty save in accordance with law”. This approach has been ruled out, at least for the time being, by the Court of Appeal. In Lim Meng Suang, the Court said that “personal liberty” in the Article “refers only to the personal liberty of a person from unlawful incarceration or detention”, and that “[a]lthough the phrase ‘life’ has not been authoritatively interpreted by the Singapore courts, it should be interpreted narrowly in accordance with the jurisprudence on ‘personal liberty’ and Art 9’s context and structure”.81 It is worth noting, though, that the High Court case82 relied on by the Court of Appeal for this narrow definition of personal liberty cited no authority for it. It is thus conceivable that the Court of Appeal might be persuaded to adopt a more expansive interpretation of the terms “life” and “personal liberty” in a future case, perhaps along the lines of the Malaysian Court of Appeal’s judgment in Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan.83 There, it was held that the word “life” in Article 5(1) of the Federal Constitution of Malaysia, which is identical to Singapore’s Article 9(1), includes elements that form the quality of life including, for instance, the right to live in a reasonably healthy and pollution-free environment.84 It is easy to see how a right to the city might be encompassed within such a broadly interpreted right to life. Unfortunately, it does not seem that such an approach will be embraced by the Singapore courts any time soon.
Under administrative and constitutional law in Singapore as it currently stands, people may be put off by the difficulty and cost of seeking judicial review of a grant of planning or conservation permission. Given that Parliament has seen fit to lay down a procedure enabling objections and representations to be made about proposals to amend the Master Plan, it is submitted that a similar procedure should be introduced for applications for development work as well. One may wonder why such a procedure was not introduced in the first place. Perhaps there was a concern that development would be bogged down by unmeritorious objections to applications. In recent years, there have been instances of people objecting to plans to site childcare centres, foreign workers’ dormitories, and nursing homes near their residences, which has been condemned as evidence that an undesirable “not in my backyard” attitude is spreading.85 On the other hand, when an objection or representation to a proposed amendment to the Master Plan has been made, the Minister need not convene a hearing or public inquiry if he or she deems the objection or representation frivolous.86 There is no reason why a similar power cannot be conferred on the authority responsible for approving development applications. To ensure the decision-making process is evidence-based and transparent, the procedure must be effective – its utility is diminished if representations can be dismissed without an inquiry at the authorities’ discretion.
3. Preservation of monuments
An application for conservation permission is required if development works are sought to be made with regard to national monuments,99 and when deciding whether permission should be granted the URA will take into account any conservation guidelines relating to monuments that have been issued by the National Heritage Board (NHB).100 The power of the Minister for Culture, Community and Youth, following consultation with the NHB, to declare sites as national monuments101 thus impacts the built environment as it may restrict the extent to which development can occur. At the same time, people interested in ensuring that buildings and sites of heritage value are preserved may feel aggrieved if the Minister decides not to make preservation orders in respect of them.
The scheme for preservation of national monuments is laid out in the Preservation of Monuments Act,102 a statute dating back to 1970. As of 7 August 2015, there were 70 national monuments.103 Before the Minister issues a preservation order in respect of a monument,104 the NHB is bound to give notice of the Minister’s intention to do so to “the owner and occupier of the monument and any land adjacent thereto which will be affected” by the making of the order, giving such persons a reasonable period within which to submit any objections to the NHB. The Board must consider the objections and make recommendations on them to the Minister.105 The same procedure applies when a preservation order is sought to be amended or revoked.106 Given the wording of the relevant provisions of the Act, a person owning or occupying land adjacent to a monument that will be affected by the making, amendment, or revocation of a preservation order is entitled to rely on the statutory procedure; a person who lives further afield may not. The procedure is also inapplicable where the Minister has not manifested any intention to issue or alter a preservation order, for instance, if people wish to call for a particular site to be declared a national monument.
Once again, a person in this position would have to initiate proceedings for judicial review of the Minister’s decision to make a preservation order or to decline to do so. Apart from the difficulty of establishing that the Minister has acted contrary to administrative law rules, which was discussed earlier, another potential complication is whether the person can demonstrate that he or she has sufficient standing to bring a case against the Minister. This is a pertinent problem where monuments are concerned because people interested in seeing a monument preserved may not reside anywhere near it. It has been said that the requirement of standing tries to resolve the conflict between the “desirability of encouraging people to participate actively in the enforcement of the law” and the “undesirability of encouraging meddlesome interlopers invoking the jurisdiction of the courts in matters in which they are not concerned”.107
The ease to which judicial review can be sought depends on whether the courts take a narrow or broad approach to standing. The narrow approach is exemplified by a UK case, R. v. Secretary of State for the Environment, ex parte Rose Theatre Trust Co.108 While a site in Central London was being developed, the remains of The Rose theatre were uncovered. This was a highly significant find as most of Christopher Marlowe’s plays and two of William Shakespeare’s were first staged in this Elizabethan theatre. To lobby for preservation of the site, a group of “persons of undoubted expertise and distinction”109 in archaeology, theatre, literature, and other fields, as well as residents and their local Member of Parliament, came together to form the Rose Theatre Trust Company. The company asked the Environment Secretary to protect the theatre by declaring it an ancient monument under the Ancient Monuments and Archaeological Areas Act 1979,110 but he declined. Thus, the company applied to court for judicial review of the Secretary of State’s decision not to list the theatre.
However, the judge held that it did not have sufficient interest to bring the case. He said that although one does not need to have a direct financial or legal interest in a matter to have standing, the Act neither expressly nor impliedly gave the company a greater right or expectation than any other citizen to have a decision taken lawfully. The company would have possessed sufficient interest if the statute had, for example, stated that a party in its position had a legal right to require the Secretary of State to perform a particular duty. However, the statute did not have that effect. The judge acknowledged it was true that if a particular individual or group was not found to have standing in such cases, certain administrative decisions would go unchallenged even if they were clearly unlawful. However, the law did not require the courts to be there for every individual interested in litigating the legality of an administrative decision. The UK Parliament could have given such a wide right of legal access to people, but had not done so.111
Ex parte Rose Theatre Trust is no longer good law in the UK, and is treated as an exceptional case by some commentators.112 Currently, British courts take a broad approach to standing. For instance, in R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd.,113 a divisional court writing in 1995 recognized that over the last 12 years judges had taken “an increasingly liberal approach to standing”, and was able to say that “the merits of the challenge are an important, if not dominant, factor when considering standing”.114 Thus, unless a claim is entirely without merit, an applicant should not be denied standing simply because he or she has no stronger right than any other citizen to ensure that a public authority complies with the law. Otherwise, if every citizen shares the same interest in the matter, no one is entitled to bring a case. “[T]he real question is whether the applicant can show some substantial default or abuse, and not whether his personal rights or interests are involved”.115
A 2014 Court of Appeal decision, though, shows that the Singapore courts have not eschewed the narrow approach in ex parte Rose Theatre Trust. Jeyaretnam Kenneth Andrew v. Attorney-General 116 arose out of a claim by the opposition politician Kenneth Jeyaretnam that the Government had infringed Article 144 of the Constitution by not seeking the President’s concurrence for a contingent loan of US$4 billion it had made to the International Monetary Fund through the Monetary Authority of Singapore. The Court said he lacked standing to bring the case. To possess standing, a person must be able to allege either that a public authority has violated a personal or private right enjoyed by him or her; or a public right enjoyed by everyone in common, but that the person has suffered ‘special damage’117 – that is, damage to a greater extent or of a different nature compared to others.118 However, in the Court’s view, Jeyaretnam had brought his claim purely in the public interest, and not because of any breach of a private or public right.119 While in rare cases a court might exercise discretion to allow someone in Jeyaretnam’s position to bring a case because an authority’s breach of public duty “is of sufficient gravity such that it would be in the public interest for the courts to hear the case”, this was not established on the facts as Jeyaretnam had wrongly interpreted Article 144.120
In view of the Jeyaretnam decision, it will be hard for people to demonstrate they have standing to initiate judicial review proceedings in respect of monuments, except perhaps in cases where the relevant legal procedures have been blatantly contravened by the authorities. Consequently, I submit it is desirable for the Preservation of Monuments Act to be updated to allow interested persons other than owners and occupiers of monuments and adjacent land to make representations to the Minister.