RECENTLY IN THE landmark decision of Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority (2013; hereafter, “Chiu Teng”) the High Court recognised the doctrine of substantive legitimate expectations as part of Singapore administrative law. This is a welcome development that echoes developments in other common law jurisdictions. As is usual at any early stage in the law’s development there are a number of questions left to be considered on how the ground of review should evolve over time, including questions of the foundations of the doctrine and how the court proposes striking a balance between the applicant and the administration.
In Chiu Teng the applicant property developer raised a substantive legitimate expectation that the Singapore Land Authority (SLA) would assess premium payable on the redevelopment of land in a particular way: this was based on information available in circulars from the SLA and on the website of the SLA. Following a survey of the law in England, Australia, Canada, Hong Kong and Singapore, the court found there was a sufficient basis for recognising the doctrine of substantive legitimate expectations. The court held that such expectations can be protected via substantive relief.
In recognising the doctrine of substantive legitimate expectations, the judge in Chiu Teng emphasised the importance of fairness and the need for good public administration:
It seems to me that in this area, public law has already absorbed what is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet… The doctrine will apply in circumstances where the change or proposed change of policy is held to be unfair or an abuse of power… But these ills are expressed in very general terms; and it is notorious (and obvious) that the ascertainment of what is or is not fair depends on the circumstances of the case.
The court further highlighted what would be required for the recognition and enforcement of such an expectation:
- An unequivocal representation made by someone with proper authority to the applicant or a class of persons to which the applicant belongs.
- Reasonable and detrimental reliance on the representation by the applicant.
- Even if there is such a representation and reliance the court will not enforce the expectation if, inter alia, the public authority can show an overriding national or public interest which justifies the frustration of the applicant’s expectation.
In applying these requirements to the facts of the case the court found in favour of the respondent. First, the SLA’s website explicitly stated that the SLA made no representations. Second, although the SLA circulars were addressed to the class of persons which included the applicant, it was not reasonable for the developer to have relied solely on the SLA’s circulars. There was sufficient market evidence at the time that pointed to the fact that alternative modes of calculating the premium payable may be used, including recently widely reported events in the media involving other major developers. In any event, the court held that any legitimate expectation would be overridden by the SLA’s overriding statutory duty to get the best returns in matters involving State land. The SLA is under a statutory duty to optimise land resources and to “have regard to efficiency and economy and to the social, industrial and commercial and economic needs of Singapore”. This public interest trumped the financial interests of a corporation like the applicant.
Three areas for development
This is a welcome development of the law and it will be interesting to see how it develops. This post highlights three particular areas for development:
- The normative foundations of the doctrine. In the judgment (as highlighted above) there is a reliance on notions of ‘moral values’, ‘fairness’ or ‘abuse of power’. These concepts would need further content to ensure the utility of the doctrine. At the moment it may be difficult for the court or the administration to strike the balance between the expectations on the one hand and the public interest (the final stage of deciding whether to enforce a substantive legitimate expectation) without a fuller elaboration of the normative underpinnings of the doctrine. For this balance to be struck it is important to understand the ‘values’ that inform each side of the scale. From the administration’s perspective particularly, without more explanation it may be difficult to understand why their decision to pursue a particular policy goal would be an ‘abuse of power’.
- The balance between legitimate expectations and the public interest. The enforcement of a substantive legitimate expectation competes with the need for flexibility in the government’s development of policy. The issue is how to strike a balance. One option is to use some form of structured proportionality reasoning. Alternatively, the courts can engage in a more open textured balancing exercise. This was the preferred approach in Chiu Teng. The extent of the balancing, however, was restricted to one paragraph in the judgment (as highlighted above). This may be because the applicant had a weak expectation in the first instance. It may also be due to the fact that, in most jurisdictions, in the planning context the public interest is naturally stacked against the applicant. This echoes views elsewhere about the court’s limited role in reviewing areas of polycentricity, such as planning. It will be useful for the courts to provide more guidance on how this balancing is supposed to be done in future cases. This is especially to allow courts to properly engage with this part of the test in order to give due importance to both the substantive legitimate expectation and the public interest.
- Enforcement options. In Chiu Teng, the court concluded that an expectation can be protected via substantive relief in the form of giving effect to the substantive legitimate expectation. Chiu Teng followed the high water mark decision of the Court of Appeal of England and Wales in R v North and East Devon Health Authority, ex parte Coughlan (1999). However, later cases added qualifications. In the case of R (Bibi) v Newham London Borough Council (2001), the Court of Appeal held that a declaration of substantive benefit would inappropriately encroach upon executive power. Accordingly, in these subsequent cases the substantive legitimate expectation was enforced as a relevant consideration that the executive was mandated to consider. At this stage in the law’s development it may be preferable for remedial flexibility with the court having various options open to them in how they enforce the expectation (ie, substantively, as a relevant consideration or monetarily). The need for some flexibility in terms of remedy could reflect the different ways in which it is possible to strike a balance between the applicant and the respondent.
The doctrine of substantive legitimate expectations is now part of the public law landscape in Singapore. There is room to develop the scope, focus and foundations of the ground. The question remains whether substantive legitimate expectations will inspire other developments to substantive review in Singapore.
1 Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority  1 SLR [Singapore Law Reports] 1047, High Court (Singapore).
2 See also Chen Zhida, “Substantive Legitimate Expectations in Singapore Administrative Law” (2014) 26 Sing Acad LJ [Singapore Academy of Law Journal] 237; and Charles Tay Kuan Seng, “Substantive Legitimate Expectations: The Singapore Reception” (2014) 26 Sing Acad LJ 609 for a discussion of other interesting issues raised by the judgment in Chiu Teng.
3 Chiu Teng, above, note 1 at p. 1077, para. 79, citing R (Reprotech (Pebsham) Ltd) v East Sussex County Council  UKHL 8,  1 WLR 348 at para. 35, House of Lords (United Kingdom); and at p. 1077, para. 81, citing The Queen on the Application of Bhatt Murphy (a firm) v The Independent Assessor  EWCA Civ 755 at para. 28, Court of Appeal (England and Wales).
4 Sections 6(1)(a) and 6(2)(a) of the Singapore Land Authority Act (Chapter 301, 2002 Revised Edition).
5 R v North and East Devon Health Authority, ex parte Coughlan  EWCA Civ 1871,  QB 213, Court of Appeal (England and Wales).
6 R (Bibi) v Newham London Borough Council  EWCA Civ 607,  1 WLR 237, Court of Appeal (England and Wales).
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