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PUTRAJAYA (Feb 4): The Court of Appeal last week dismissed an appeal by a landowner-cum-developer for loss of profit/business disturbance following the acquisition of almost two acres of its 4.53 land in Klang for the construction the West Coast Expressway (WCE).
The landowner, See Hee Yang Property Management Sdn Bhd, had submitted a first planning approval for the construction of 74 units of two-storey terraced houses to the Shah Alam City Council (MBSA), where each property is valued between RM500,000 to RM630,000 and it obtained a loan of RM3.25 million for it.
The Selangor government then acquired six out of 74 lots pursuant to the Land Acquisition Act for the construction of the WCE, and as a result of the acquisition, the developer could not proceed with the first planning approval and submitted a second planning approval to develop the land not acquired for 55 smaller and lower-priced houses.
The Klang district land office awarded a compensation sum of RM6.129 million to See Hee Yang for the lost land that included a sum of RM4.987 million as loss of profit as a result of this, but the developer sought to refer the award to the High Court following two references.
Court of Appeal judge Datuk Wong Kian Kheong in his 70-page judgement upheld the Shah Alam High Court’s decision and ruled there was no appealable error as the lower court was right to reject the claim.
Wong, who sat with Datuk Azimah Omar (now a Federal Court judge) and Datuk Ismail Brahim, said the See Hee Yang’s claim of loss of business did not amount to an injurious affection (where a property’s value decreases as a result of a public project) as it did not constitute “damage” which seriously affects the remaining land.
“This follows that at the time of the acquisition, unlike the Semenyih Jaya case (where developmental work for a factory had begun), See Hee Yang had not commenced any construction works on the land. Accordingly, See Hee Yang’s loss of profit or business could not be incorporated into the market value of the acquired land,” the judge said.
Furthermore, the appellate court ruled that the compensation for market rate offered by the Klang district land office was right.
Wong said the High Court had adopted a common comparable for the land based on the proposed market value of RM1,520.15 per square metre.
“In five previous land references, the High Court had decided that the market value of the five lots in the previous land references to be RM1,500 per square metre. In view of the market value (five previous land references), the learned High Court judge maintained the Klang land district market value award.
“The High Court judge did not commit any error of law that would justify appellate intervention with regard to the order (for compensation). The award was made by the Klang land district office on Sept 29, 2017, and the court considered it the rightful sum according to the Land Acquisition Act, and there is no need for further land reference,” the judge said.
For these reasons, the bench dismissed See Hee Yang’s appeal and in upholding the High Court’s decision ordered the company to pay RM30,000 costs each to the Malaysian Highway Authority and the Klang land district office which had been named as respondents in the appeal.
Cheah Sin Chin and Gan Yu Lin from Messrs Azwar & Associates appeared for the developer company, while Koh Yew Chong and Justin Leong Chee C'Jun from Messrs Lee & Koh appeared for the Malaysian Highway Authority. Counsels Etty Eliany Tesno and Norfariza Ridzuan appeared for the Selangor legal advisor’s office.
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