Mall takes owner of service road leading to its loading bay to court over access for rubbish trucks

SINGAPORE: A mall has taken the owner of a service road leading to its loading bay and rubbish bin centre to court over access for its rubbish trucks, after the road owner started charging the refuse trucks parking rates at S$5.56 (US$4.35) per half hour.

After purchasing the service road, KOSMA Holdings took steps to "fully monetise" its ownership. 

It did this by charging access fees for rubbish trucks, preventing manual wheeling of the bins and charging vehicle fees for access to the loading bay, which is in addition to paying an Electrionic Parking System (EPS) fee to enter the service road.

According to a judgment released on Wednesday (Sep 17), the management corporation of Parklane Shopping Mall took KOSMA Holdings to court saying its measures have caused great difficulty for its daily refuse removal and caused significant delays to the delivery of goods.

The mall was built in the 1970s and part of the common property is the development's loading/unloading bay and the rubbish bin centre within the loading bay.

The management corporation of the mall manages both the loading bay and bin centre and has contracted a private waste management company for refuse collection.

While the mall faces the main road, which is Selegie Road, the loading bay can be accessed only by turning in through a smaller public road, Kirk Terrace, before going through a service road in private hands.

Vehicles going to the multi-storey car park, which is further past the loading bay, will also have to pass through Kirk Terrace and the service road.

KOSMA Holdings is both subsidiary proprietor of the car park and registered proprietor of the service road. Its wholly owned subsidiary, K Parking, manages and operates the car park and service road.

In the past, the mall and service road were part of a single lot. The lot was subsequently subdivided so they now sit on separate lots.

KOSMA acquired the service road in February 2021. An EPS gantry had been installed at the entrance of the service road by a previous owner.

The previous owner's practice was for staff to open the EPS gantry for refuse collection trucks to allow them to enter the service road without any charges.

Other vehicles using the loading bay, such as delivery vehicles, were charged the "Lorry/Service Road" parking rates of S$5.56 per half hour.

When it took over, K Parking continued this practice "out of goodwill" until December 2024, when it began charging the refuse collection trucks the same parking rates of S$5.56 per hour, the judgment read.

KOSMA also implemented other measures to "protect its property", including installing a fence and a bollard on the service road, grills below the EPS gantry and extending the gantry's arm.

This appears to be designed to stop people from pushing rubbish bins past the gantry to refuse collection trucks parked on Kirk Terrace, the judge noted.

KOSMA also began imposing administrative fees of S$1,000 for each count of unauthorised entry and provided for a chain to be fastened at specified hours between the loading bay and the service road.

KOSMA indicated that it would charge administration fees for access to the loading bay throughout the day from S$20 to S$100 a time, on top of the parking fee charged at the gantry.

In February this year, KOSMA sent the mall's management corporation its revised rates via a notice which included these statements: "No access on ALL Sundays and Public Holidays", "Permission to access the service road is at the discretion of the Carpark's Management", and "All subsidiary proprietors and/or their tenants must register their suppliers and/or contractors to enter the loading/unloading bay from our service road and NEED to provide an insurance policy of $1.0M covering for Public Liabilities including damages to properties, accidents, deaths, injuries, nuisance and etc. in favour of the carpark owner, Kosma Holdings Pte Ltd".

The mall sought an easement under the Land Titles Act for them to access the service road, along with a permanent injunction restraining KOSMA from stopping vehicles from entering the loading bay and an injunction for KOSMA to remove the installed structures preventing entry.

The mall also sought a declaration that a sum of S$6,000 imposed by KOSMA on the mall for alleged unauthorised entries into the service road on six occasions is "an irrecoverable penalty and unenforceable".

Justice Philip Jeyaretnam found that the service road was always intended to serve the loading bay, including the bin centre, and the car park.

He said KOSMA's conduct has been "unreasonable and has impaired the effective use of the mall", especially by altering gantry arms to stop even the manual wheeling of refuse bins and charging "exorbitant" administrative fees to lower a new chain restricting access to the loading bay.

The judge found that an easement of way over the service road to the mall's loading bay was reasonably necessary for the mall.

An easement is a legal right allowing the owner of a property to use another piece of land it does not own for a specific and limited purpose.

Legislation was amended in 2019 to allow the court to create an easement for effective use of property.

The judge ordered the mall to attempt to formally obtain the easement directly from KOSMA and to show it can fulfil certain requirements under the Land Titles Act to do so, and for KOSMA to consider adequate compensation in exchange.

This is because, while the mall has corresponded with KOSMA on solutions to the problem, it did not directly address the question of creating an easement.

"This is a consequence both of a lack of clarity on the MCST's part and an uncompromising approach from KOSMA," said the judge.

He explained that KOSMA can be adequately compensated under the law for the creation of the easement, as it would suffer loss or disadvantage under the easement through the wear and tear on the service road caused by the vehicles.

If the mall and KOSMA are unable to agree on the easement on their own, then both sides are to give arguments on the scope of the easement, along with any limitations on it and the compensation for its creation, before the court creates an easement.