Gopal Sri Ram JCA:

[1] The respondent owns a piece of land in Seberang Prai which it wanted to develop. It wanted to construct a commercial building on the land. It was to be an 11-storey building with a supermarket. It hired an architect who drew up plans. Those plans had to be approved by the appellant which is the local authority in, and for, Seberang Perai. There were two plans to start with. One is what is generally called the layout plan; the other had to do with the earthworks.

[2] Under the law, the respondent could not lawfully commence building work of any sort - including earthwork - without the approval of the appellant. It waited for the approvals to come. Eventually they came. The layout plan was approved by the appellant on 30 November 1984, while the earthworks plan was approved on 19 July 1986. The approvals came with conditions. One of the conditions required the respondent to construct or upgrade a monsoon drain on the land adjoining the respondents property. That land belonged to the state. There were squatters on it. Constructing the monsoon drain meant having to deal with these squatters. Another condition was that the respondent had to construct a perimeter drain on its land.

[3] The respondent commenced construction. When the third floor of the building was under construction, it had a change of heart. It did not want to have 11 storeys. It proposed to have a five-storeyed building. So it got its architect to prepare and submit an amendment to the original plan. That was approved as well, once again with conditions. There was a requirement to submit a fresh earthworks plan to the engineering department. What the appellant obviously wanted was either compliance with the conditions in the original earthworks plan or a new proposal on the drains.

[4] The respondent constructed about 80% of the monsoon drain, dealing with the squatters as it went along. Then it ran into brick wall, as it were, with one of the squatters who, it appears, was a little adamant. At that point, the respondent stopped work on the monsoon drain.

[5] The respondent did not construct the perimeter drain. Mr Yeoh, who appeared for the respondent on the appeal, has told us that there are good reasons for this. He has drawn our attention to the several plans and the endorsements on them. According to him, the area of the respondents land on which the perimeter drains were to be constructed had to be surrendered to the Jabatan Kerja Raya (the Public Works Department), or JKR for short, for the construction of a road. We will deal with this aspect of the case later.

[6] Having completed the building, the respondent applied to the appellant for a certificate of occupation so that it could put the building to use. But the appellant refused to issue such a certificate principally on the ground that the respondent had failed to comply with the conditions relating to the construction of the perimeter and the monsoon drains. Thereupon, the respondent took out an originating summons in which it claimed several declarations, the effect of which was to declare as unlawful the appellants refusal to issue the certificate of fitness for the building in question.

[7] When the matter came on for hearing before Vincent Ng J, the respondent withdrew the first two declarations claimed in its summons. After hearing arguments, the learned judge granted the respondent the following relief:

(i) a declaration that the defendants are not entitled in law nor justified in the exercise of discretion to require the plaintiffs, as a condition for the issuance of an occupation certificate in respect of a block of five- storey building (hereinafter referred to as the said building) on the plaintiffs land known as Lots 368, 369 and 370 Mukim 15 Jalan Telaga Ayer, Butterworth (hereinafter referred to as the said land), to construct a perimeter drain along the eastern and southern boundary of the said land;

(ii) a declaration that the defendants are not entitled in law no