DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO. P-01-231-2010
ECONOMIC DEVELOPMENT (LOW COST HOUSES)
SDN BHD (No Syarikat : 6189-W) … PERAYU
MAJLIS PERBANDARAN SEBERANG PERAI … RESPONDEN
(Dalam Mahkamah Tinggi Malaya di Pulau Pinang Saman Pemula No. 24-529-2007
Dalam Perkara Hartanah Lot 4319, H.S.(D) 13270 (yang dahulunya dikenali sebagai H.S. (D) 497), Mukim 7, Seberang Perai Utara, Pulau Pinang, iaitu tanah lapang
Dalam Perkara Seksyen 22(3), (5)(c) dan (h) Akta Perancangan Bandar Dan Desa 1976
Dalam Perkara Seksyen 11 Akta Pelepasan Spesifik, 1950
Dalam Perkara Aturan 7 Kaedah 2 dan 3, Aturan 28 Kaedah 2(2) dan Kaedah 3 (3) Kaedah-Kaedah Mahkamah Tinggi, 1980
Majlis Perbandaran Seberang Perai … Plaintif
Economic Development (Low Cost Houses)
Sdn Bhd (No Syarikat : 6189-W) … Defendan)
LOW HOP BING, JCA
SYED AHMAD HELMY BIN SYED AHMAD, JCA BALIA YUSOF BIN HAJI WAHI, JCA
LOW HOP BING, JCA
DELIVERING THE JUDGMENT OF THE COURT
 This is the Appeal by the Appellant (Defendant) against the decision of the learned High Court Judge who had allowed the Respondent’s (Plaintiff’s) claim and ordered specific performance directing the Defendant to transfer the land known as Lot 4319, GRN
100974, Mukim 7, Daerah Seberang Perai Utara, Pulau Pinang (the Plot) to the Plaintiff.
II. FACTUAL BACKGROUND
 The Plaintiff’s Originating Summons (OS) and the affidavits in support reveal that the Plaintiff is the Local Planning Authority for the area of Seberang Perai.
 The Defendant applied and submitted the necessary layout plans to the Plaintiff for planning permission to develop an area known as Taman Senangan.
 The Plaintiff approved the plans and imposed a condition, inter alia, requiring the Defendant to surrender the Plot to the Plaintiff for a nominal consideration of RM1.00 (the Condition). The Defendant accepted the Condition by signing and returning a copy of the approved plans to the Plaintiff. The Plot is an open space with an area of about one acre.
 In 1997, the Defendant prepared the necessary documents to transfer the Plot to the Plaintiff. However, these transfer documents contained errors and the transfer could not be effected. The Plaintiff had to return the documents twice to the Defendant’s solicitors for rectification, but there was no further action and the transfer did not take place.
 On 3 November 2006, the Plaintiff’s solicitors issued a Notice of Demand to the Defendant requiring the Defendant to forward the documents to the Plaintiff.
 Upon the Defendant’s failure to comply with the Notice of Demand, the Plaintiff sought and obtained specific performance to compel the Defendant to transfer the Plot to the Plaintiff.
 Hence, this Appeal by the Defendant.
 Defendant’s learned counsel Mr Ramesh Abraham (assisted by Mr Jason Gopal) submitted that the Plaintiff’s claim is based on contract and so the six-year limitation period applies, in which case, time began to run from 1992 so that the Plaintiff’s OS filed in 2007 is statute-barred.
 Learned counsel Mr Kanesh Sundrum contended for the Plaintiff that the Plaintiff’s OS is not statute-barred as the Plaintiff’s claim is for recovery of land and so the limitation period is 12 years. He stressed that in 1997, there was an acknowledgement by the Defendant’s solicitors of the Plaintiff’s rights over the Plot. Further, there was the Notice of Demand issued by the Plaintiff’s solicitors in 2006.
 Under this head. we identify the question for consideration as follows:
“Is the Plaintiff’s OS aimed at the recovery of land (i.e the Plot)
so that the limitation period is 12 years?”
 We are of the view that the Plaintiff’s OS is an action for recovery of land. S.9(1) of the Limitation Act 1953 provides that the limitation period for an action for recovery of land shall be 12 years. (A reference hereinafter to a section is a reference to that section in the Limitation Act 1953).
 In relation to the Defendant’s argument that the six-year limitation period had triggered in 1992 and not 1997, we note that the Defendant’s solicitors had written to the Plaintiff acknowledging the Plaintiff’s rights over the Plot. The Defendant’s solicitors had forwarded the documents (with errors) to the Plaintiff’s solicitors to effect the transfer of the Plot to the Plaintiff. The Defendant’s conduct clearly constituted an acknowledgement of the Plaintiff’s rights over the Plot. S.26(1)(a) provides that where there is an acknowledgement (by the Defendant in the instant Appeal) in 1997, the limitation period would start from 1997 and end in 2009. Hence, the Plaintiff’s OS commenced in 2007 is clearly within the 12-year limitation period. There is therefore no necessity for us to consider the Notice of Demand issued by the Plaintiff’s solicitors in 2006.
 The judgment of the Federal Court delivered by Gill FJ (later CJ(M)) in Nasri v Mesah  1 MLJ 32 FC at p.33 H-I rt column
made it clear that whether the action is for specific performance or for a declaration of title to land, it is essentially an action to recover land, so that the period of limitation would be 12 years in either case.
 Our answer to the above Question is in the affirmative.
IV. DEFENDANT’S PAYMENT OF QUIT RENT
 The Defendant relied on its payment of the quit rent for the Plot and argued that the Plaintiff’s acceptance of such payment precluded the Plaintiff’s OS for specific performance.
 The Plaintiff submitted that this argument is totally misconceived and wrong.
 With the utmost respect to the Defendant’s learned counsel, it is necessary for us to point out that the quit rent was paid to the Land Office and not the Plaintiff. The Plaintiff being the Local Planning Authority does not have the power or jurisdiction to collect the quit rent. The Defendant’s own documents clearly show that the Defendant had been paying the quit rent to the Land Office.
 The Defendant’s submission on this issue is perplexing. The Defendant knew very well that the Plot was meant to be transferred to the Plaintiff. The Defendant’s mere act of paying the quit rent to the
Land Office does not ipso facto affect the Plaintiff’s right to the Plot. Consequently, the decree of specific performance has been correctly granted against the Defendant.
V. WAS THE CONDITION ULTRA VIRES?
 The Defendant argued that the Condition was ultra vires and so specific performance should not be granted against it.
 The Plaintiff responded that the Condition is valid under s.22(1) and s.22(5)(h) of the Town And Country Planning Act 1976 (s.22(1) and s.22(5)(h)) and therefore valid.
 S.22(1) and s.22(5)(h) provide for the treatment of an application for planning, and the conditions which may be imposed by the Plaintiff as the Local Planning Authority. The relevant portions of s.22(1) and s.22(5)(h) read as follows:
“22 Treatment of applications
(1) As soon as possible after the receipt of an application for planning permission, …. the local planning authority shall decide on the application for planning permission.
(5) Conditions imposed under subsection (3) may include any or all of the following conditions, that is to say, conditions:
(h) for securing the making up of open spaces in accordance with the approved layout plans.”
 S.22(1) and s.22(5)(h) expressly provide for the imposition of a condition pertaining to open spaces in accordance with the approved layout plans for the development of the land.
 By way of analogy, in Fawcett Properties Ltd v Buckingham County Council  3 All ER 503 HL, the issue concerned the validity of a condition which the respondent (Birmingham County Council) as the local planning authority, in exercise of powers conferred on it by s.14(1) of the Town and Country Planning Act 1947, imposed on the appellant (Fawcett Properties Ltd) when granting planning permission for the development of two farm workers’ cottages. The condition was that the occupation of the cottage was to be limited to persons employed in agriculture or in forestry. This condition was challenged as ultra vires. Lord Denning spoke in the House of Lords and held that:
“When planning conditions are made, as here, so as to maintain the green belt against those who would invade it, they ought to be supported if possible. And credit ought to be given to those who have to administer them, that they will be reasonably administered …”
 In the instant Appeal, the importance of providing for “open spaces” in the development project for the benefit of the general public cannot be denied and has indeed been affirmed in s.22(1) and s.22(5)(h). The open space has been laid out or reserved for laying
out wholly or partly as a public garden, park, sports and recreational ground, pleasure ground, walk or as a public place: s.2 of the same Act.
 We therefore hold that the Condition is not ultra vires.
VI. STRUCTURES ON THE PLOT
 The Defendant finally maintained that there are illegal structures on the Plot and so specific performance should have been refused.
 The Plaintiff took the position that the main issue here is whether the Defendant should transfer the Plot to the Plaintiff pursuant to the Condition.
 In our view, the presence or absence of any structure(s) on the Plot is irrelevant. In any event, the pictures tendered by the Defendant at pp 122 to 124 of the Appeal Record clearly show that the building is called “Dewan Orang Ramai Taman Senangan” i.e a Public Hall in Taman Senangan. The amenities that can be seen in the pictures are public amenities which are completely compatible with the use of the Plot as a public open space.
 We are of the view that the Defendant’s contention is wholly without merits.
 On the foregoing grounds, we dismiss this Appeal with costs of RM10,000 and affirm the decision of the High Court.
 Deposit to the Plaintiff (Respondent) on account of the fixed costs.
DATUK WIRA LOW HOP BING
Court of Appeal Malaysia PUTRAJAYA
Dated this 22nd day of May 2012
COUNSEL FOR APPELLANT:
Mr Ramesh Abraham (assisted by Mr Jason Gopal) Tetuan Arizal Jailani & Co.
Peguambela & Peguamcara No. 1-B, Tingkat 2 Lorong Perda Selatan 2 Bandar Perda 14000 Bukit Mertajam PULAU PINANG
COUNSEL FOR RESPONDENT:
Mr Kanesh Sundrum
Tetuan Kanesh Sundrum & Co.
Peguambela & Peguamcara
No. 1-1-A, NB Plaza
3000 Jalan Baru
Nasri v Mesah  1 MLJ 32 FC at p.33 H-I rt column
Fawcett Properties Ltd v Buckingham County Council  3 All ER 503 HL