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2022 MarsdenLR 1916
COURT OF APPEAL PUTRAJAYA
LEMBAGA LEBUHRAYA MALAYSIA – Appellant
Versus
SIME DARBY PLANTATION BERHAD & ORS – Respondent
[Civil Appeal No: B-01(A)-192-04-2021]
The failure to fulfill the 'before-and-after' test for severance compensation does not preclude a minimal award being made based on evidence presented, reaffirming the court's authority in assessing damages irrespective of valuation shortcomings.
Headnote:(A) Land Acquisition Act 1960 – Proviso to s 49(1) – Award of compensation – Appeal against severance compensation of RM13,844,505.68 was dismissed as landowners' valuer had not fulfilled the 'before-and-after' test established in Dr Murugasu's case – High Court correctly stated that a minimum award of 2.5% for severance compensation could still be made based on evidence presented. (Paras 4, 5, 60, 67)
(B)
Severance Compensation – High Court's assessment found that remaining lands, although separated by the highway, experienced a minimal adverse effect, hence the award of severance compensation was deemed reasonable. (Paras 7, 61, 66)
(C)
Issues
of Law – The appeal raised no valid questions of law as it primarily involved fact-based evaluation concerning compensation, thus barred under s 49(1) of the Land Acquisition Act. (Paras 8, 62, 67)
Facts of the case:
The appeal was by Lembaga Lebuhraya Malaysia against the compensation awarded to landowners whose land was partially acquired for a highway project – The landowners claimed severance compensation which the High Court granted at a rate of 2.5%.
Findings of Court:
The court concluded that while the severance resulted in some adverse effects, the assessment based on 2.5% was fair considering the evidence and the circumstances.
Issues
: The main questions included whether the High Court erred regarding the application of the test for severance compensation (Dr Murugasu's case) and if sufficient grounds existed for appealing the compensation amount.
Ratio Decidendi:
The High Court's finding for a minimal severance compensation was justified despite the landowners failing to produce complete valuation evidence, reaffirming that factual determinations on compensation are generally non-appealable.
Result:
The appeal was dismissed with costs awarded.
JUDGMENT
[1] This is an appeal by Lembaga Lebuhraya Malaysia ("LLM") against the whole of the decision of the learned Judicial Commissioner ("JC") given on 18 March 2021 in a land reference comprising several cases which were consolidated pursuant to an Order dated 18 December 2019 made in Shah Alam High Court Land Reference No: BA-15-26-02-2019.
[2] The 1st and the 2nd Respondents are the landowners ("Landowners"). The 3rd respondent is the Land Administrator. The Landowners owned 10 parcels of land ("Subject Lots") with a combined land area of 12,671,250.93 sq.m. The Subject Lots were contiguous to each other and were used as oil palm plantations. Part of the Subject Lots were acquired by LLM for a Highway Project known as "Projek Lebuhraya Persisiran Pantai Barat (LPB) dari Persimpangan Assam Jawa-Persimpangan Tanjung Karang, Pakej 7 (Part 1), Daerah Kuala Selangor, Selangor" via Selangor Government Gazette No: 4809 dated 9 December 2016 ("Highway").
[3] The land area that was acquired was 626,794.06 sqm or 4.9% of the total land area. As a result of the acquisition of part of the Subject Lots, the remaining lots were separated into two (Portion A and Portion B) with the Highway running through. Following the said severance, the remaining lands, ie, Portion A and Portion B have each an area of 405.4939 hectares and 798.9446 hectares respectively.
[4] On 18 March 2021, the Consolidated Land References were heard and the JC ordered, inter alia, that the 3rd Respondent's Award be maintained, save for the Award in respect of compensation for injurious affection which was set aside and substituted with an Award for severance, payable at the rate of 2.5% of the market value in respect of the remaining unacquired land (11,986,585.00 sqm) in the sum of RM13,844,505.68 ("Decision"). It is this Decision which is the subject of this appeal.
[5] The key issue in this appeal is whether the High Court, which sat as a Land Reference Court, had erred in its approach and application of the test applicable in regards to the Landowners' claim for severance compensation.
[6] Essentially, LLM contended that the Landowners were not entitled to severance compensation as they did not fulfil the test enunciated by the Federal Court in Datuk Dr Murugasu Sockalingam & Anor v. Superintendent Of Lands And Surveys, First Division, Sarawak, ("Dr Murugasu's case").
[7] Fundamentally, it was LLM's position that the JC had erred in granting compensation for severance when:
a. the Landowners had allegedly failed to provide any evidence of the value of the unacquired portions of land prior to and after the acquisition, as set out in Dr Murugasu's case;
b. the Landowners had allegedly failed to prove that the potential of the unacquired portions was and would be affected by the acquisition, as required by Dr Murugasu's case;
c. the JC had allegedly adopted an incorrect method of assessment of damages for severance by using the total area of the unacquired portions which were, allegedly, unaffected by the acquisition; and
d. the JC had failed to substantiate her decision as to how or why the Landowners could still suffer severance (if any) in light of the undertaking by LLM and/or West Coast Expressway Sdn Bhd to construct 4 Road Over Bridge ("ROB") and 2 Road Under Bridge ("RUB").
[8] It is of course axiomatic that there can be no appeal on an award of compensation and, in order to maintain an appeal, LLM must demonstrate that there are question(s) of law and that the question(s) is/are not one that "comprises an award of compensation". See: the proviso to s 49(1) Land Acquisition Act 1960 .
[9] In Pentadbir Tanah Daerah Johor v. Nusantara Daya Sdn Bhd , ("Nusantara Daya") the Federal Court held [58] that the proviso to s 49(1) must be "narrowly and strictly construed"; that the definition must not be extensive as it would undermine the clear intent of the proviso to s 49(1) - that there is no right of appeal in respect of decisions comprising "an award
