Chapter 5 Land Administrator’s Right of Way ( Larow) PDF

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Yew Jean Vern (PTP)

Chapter 5: Land Administrator’s Right of Way (LAROW) What is LAROW? Eg: no other road to get to a public place. In order to get access to public road, public need to pass by your land.

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S 387 NLC states that public terminal means the foreshore, river, railway, station, public road. No direct access to public terminal except your land.

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S388 (1) provide that the LA may create rights of way over the land.

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S. 388 (2) states the rights conferred and obligations imposed shall run with the land and binding on the proprietors for the time being whether he likes it or not.

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Lye Thean Soon v Syarikat Warsaw defined LAROW as a right of passing over someone else’ property and without interest whatsoever in the soil of the land which remains the property of the owner. It was held that the SA has the power to create either private or public right of way depending on the need and circumstances.

Type of LAROW Public Right of Way 

S. 389 (1) (b) public LAROW which may be a right created for the benefit of public.

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S 389 (4) authorized public to pass and repass between any specified land (alienated land) and a public terminal.

Yew Jean Vern (PTP)

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S. 390 (2)(b) illustrates where Land Administrator receives an application for private LAROW or thinks that the creation for a public LAROW is expedient, shall hold an enquiry or make other investigation.

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S. 390 (3), a LAROW can be created if the Land Administrator is satisfied that it is expedient to create one.

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Che Nik bte Bakar v Pentadbir Tanah, Kuala Krai, in the absence of an alternative route, there was thus an urgent public necessity for the land administrator to grant a public right of way across the appellant's land, even though it was against the principle of inviolateness of land. The private interest of the appellant that she might lose good income from the use of her road must give way to the higher interest of the public.

Private Right of Way 

S389(1)(a) provided that a LAROW may be a right of way created for the benefit of the SA or proprietor or occupier of any alienated land.

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S389 (2) further provide that a private right of way created for the benefit of the SA shall authorized the persons acting with the express or implied consent of the SA.

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S389(3) provided that the private right of way created for the benefit of the proprietor or occupier of the alienated land shall authorize the proprietor.

GRANT LAROW 

Lye Thean Soon v Syarikat Warsaw, public rights may arise in two ways: by statute or dedication of the soil to the public use and acceptance of public.

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Nik bte Bakar v Pentadbir Tanah, Kuala Krai, the alternative road was still a jungle, sloppy thus it is not considered as alternative road. Public LAROW granted.

Yew Jean Vern (PTP)

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Alternative route: Vadivelu v M Radhakrishnan, there were two alternative access road. The first road was for light vehicle. The second road was swampy and prone to flood. The court held that LA was correct in ordering LAROW.

NOT GRANTING LAROW 

Si Rusa Inn Sdn. Bhd. v The Collector of Land Revenue Port Dickson & Ors, the grantee was granted a LAROW against landowner to access beach. There is an alternative road which is longer with a further 1 to 2 km. The court in the opinion that expedient is not convenience, there must be something more than just mere inconvenience or convenience; some situation that partakes of gravity or urgent necessity to grant a private right of way. (Expediency S 390 (3))

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Liow Tow Thong & Ors v Pentadbir Tanah Alor Gajah, where there is an alternative right of way available, the land administrator must take that fact into consideration. The grant of a right of a way, when another one already exists, though less convenient, is a wrongful exercise of discretion.

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Liew Peck Lian & Ors v The Conservator of Forest, before a right of way can be granted under these provisions, the Collector must satisfy himself that access is not otherwise reasonably available and ‘reasonably’ here certainly does not mean ‘conveniently’.

Expediency

Yew Jean Vern (PTP)

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Section 390(3) allows for the creation of public right of way on private land, that principle must be considered in the light of the doctrine of salus populi supreme lex. The interests of the public are paramount, and that private interests may in some circumstances be subordinated to the higher interests of the public, when the State thinks it is proper to do so.

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Si Rusa Inn Sdn. Bhd. v The Collector of Land Revnue Port Dickson & Ors, the word ‘expedient’ means properly and reasonably. Any authority that is conferred on a public official to grant a right of way against a landowner for the benefit of another has to be exercised for a proper purpose and reasonably unless exceptional circumstances exists.

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Thankam De Silva v Pentadbir Tanah Daerah Larut Matang Taiping, the word ‘expedient’ in section 390(3) does not give a wide discretionary power for the LA to decide whether LAROW needs to be created. The discretionary power must be exercised carefully after considering all the available material facts including the rights and interests of the landowners whose land shall be affected by the right of way.

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Che Nik Bakar v Land Administrator, Kuala Krai. In Liew Peck Lian v The Conservator of Forests, a collector must be satisfied that access was not otherwise reasonably available when ‘reasonably’ did not mean ‘conveniently’.

Right to be heard and compensation 

Taat Yik Plantations Sdn. Bhd. v Pentadbir Tanah Hilir Perak & Ors, the owner of land in respect of which a right of way is created should be given every opportunity to object and present his view before the proposed route is approved. Failure to do so would constitute a breach of one of the rules of natural justice, namely the right to be heard, which would render the order made bad.

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S393(1) compensation shall be made payable to any of the person for the use of his land as LA’s right of way and for any damage to the tress, crops or building he is entitled to as a result of creation of the right of way.

Yew Jean Vern (PTP)

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S393(2) further states that the LA shall determine the amount of compensation made payable.

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S393(3) provides no person shall be entitled to a compensation for damage suffered as the result of the creation of a Land Administrator's right of way.

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Che Nik bte Bakar v Pentadbir Tanah, Kuala Krai, the appellant was adequately compensated for the right of way.

Can right of way be canceled? 

S395(1)(a)&(b) provided that when the LA is of the opinion that any person failed to compile with the conditions or it is inexpedient that a LAROW should continue to exist the LA may hold an enquiry and order the right of way to be extinguished when there are alternative road exists in the future. Then, the owner may apply to cancel the LAROW.

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S390 (3) provided that the LA shall make an order to create the right of way after holding an enquiry or investigation.

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S390 (4) provides that the order made under s390 (3) shall describe sufficiently for the purpose of the identification the land and the public terminal.

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S 391(1)(a) further stipulated that survey conducted on the LAROW route. Thus, the LA will hold an enquiry. If LA decided that it is no longer expedient, he shall cancel the memorial on RDT and LAROW is extinguished.

Yew Jean Vern (PTP)

Yew Jean Vern (PTP)

Yew Jean Vern (PTP)...