Court of Appeal Rules that Car-Parking Spaces in a 1996 Strata Project are NOT Accessory Parcels 

In Cempaka Mewah Sdn Bhd (in creditors’ voluntary liquidation) v Pengarah Ukur Dan Pemetaan Negeri Sembilan [2026] CLJU 270, the Court of Appeal allowed the developer’s appeal and set aside the High Court’s dismissal of its Originating Summons. The developer sought declaratory relief compelling the Director of Survey and Mapping, Negeri Sembilan, to issue the Certificate of Proposed Strata Plan (CPS/8A Certificate) under the Strata Titles Act 1985 for the Cape Nautica Villas project. The Respondent had refused the application, citing an alleged inconsistency between the proposed strata plan and the 1996 Sale and Purchase Agreements (S&Ps) regarding the status of car-parking spaces. The Court of Appeal held that the car parks were never intended to be accessory parcels and that the OS was the correct mode of proceeding.

Background of the Case

• Cempaka Mewah Sdn Bhd developed a 200-parcel strata residential project known as Cape Nautica Villas on Lot 1309, PN 11588, Bandar Telok Kemang, Port Dickson. The company entered creditors’ voluntary liquidation with liquidators appointed on 17 April 2023.
• The statutory S&Ps (using Schedule H of the Housing Developers Regulations 1989) were executed from 16 August 1996. Clause 6 of the Fifth Schedule stated: “Accessory Parcel with one (1) car-parking lot only to be designated by the Vendor.” However, the statutory recitals and First to Fourth Schedules (which form part of the agreement) did not designate car parks as accessory parcels, and the approved building plans reflected the same position.
• On 13 February 2017 the developer, through its surveyor, applied for the CPS/8A Certificate. The Respondent refused to process the application on two main grounds: (1) the building plans and proposed strata plan did not show parking spaces as accessory parcels (contrary to the S&P wording), and (2) only a certified true copy of the building plan had been submitted. A purchaser complaint regarding parking allocation further delayed the matter. The developer commenced proceedings by Originating Summons seeking declaratory relief.

Court Rulings

High Court: Dismissed the Originating Summons in its entirety. It upheld the Respondent’s preliminary objection that the action should have been brought by way of judicial review under Order 53 of the Rules of Court 2012 rather than by OS, and did not proceed to the merits.

Court of Appeal: The Court of Appeal unanimously allowed the appeal with costs:

• Procedural ruling: The dominant issue was the construction of the private contractual rights under the S&Ps, not a pure public-law challenge to an administrative decision. Citing Ahmad Jefri bin Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor and Leo Leslie Armstrong, the court held that the OS was the proper and appropriate mode of commencement.
• Merits ruling: The car-parking spaces were never intended to constitute accessory parcels under the Strata Titles Act 1985 or the Strata Management Act 2013. The definition in Clause 31(a) of the S&P refers only to parcels shown in the Site Plan and Storey Plan, neither of which designated the car parks as accessory parcels. The non-statutory references in the Fifth Schedule merely conferred a right to use a designated parking space; they did not create statutory accessory-parcel rights. The Respondent had misconstrued the S&P and the statutory requirements. The As-Built Plans (certified by the local authority) were valid for the CPS application.

The High Court decision was set aside and the matter remitted for the Respondent to process the CPS/8A Certificate application.

Key Takeaways

1. Private vs public law procedure: Where the real dispute concerns the interpretation of contractual documents (S&Ps) and private rights, even against a public authority, an Originating Summons may be used instead of judicial review.
2. Strict construction of legacy S&Ps: References to “accessory parcel” in non-statutory schedules (Fifth Schedule) do not automatically impose a requirement to designate car parks as accessory parcels in a strata plan if the statutory schedules, approved building plans and Site/Storey Plans do not reflect that intention.
3. Accessory-parcel requirements: Under sections 8A(6) and 8A(7) of the Strata Titles Act 1985 and section 6(3)(b) of the Strata Management Act 2013, accessory parcels must be clearly shown in the proposed strata plan only where they are actually intended and reflected in the original approved plans.
4. Practical impact for developers and liquidators: Deleting or omitting accessory-parcel recitals in Schedule H at the time of sale can preserve flexibility in later strata-title applications. Liquidators may still pursue declaratory relief to facilitate title issuance for purchasers.
5. Developer to ensure consistency and clarity in documents: Developers should ensure consistency between S&P wording, building plans and strata applications to avoid protracted disputes and delays in strata-title issuance.