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To what extent is the ‘owner’ of land entitled to the paramount and subsidiary right as provided under the provisions of the NLC 1965? Answer: Discuss the application of the paramount and subsidiary rights stipulated under the NLC with regards to the following cases: a) Lacroix v The Queen Facts: th...

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4. To what extent is the ‘owner’ of land entitled to the paramount and subsidiary right as provided under the provisions of the NLC 1965? Answer:

5. Discuss the application of the paramount and subsidiary rights stipulated under the NLC with regards to the following cases: a) Lacroix v The Queen Facts: the owner of a piece of land contended that the establishment of a flight path and the flying of planes over his land was an interference with his rights of ownership and disturbance of his full enjoyment of his property. His argument assumed that the soil carried with it the ownership of what is above and what is below and that the flying of planes in the air space over private property disturbed the owner in the enjoyment of his land. He contended that the flight path had caused his property to lose market value because of the appropriation for exclusive use by the Crown of the air space over his land. However, the contention was not acceptable to the court which took the view that “to agree with the position taken by the complainant that the defendant, by expropriating (the act of govt claiming privately owned property against the wishes of the owner, which is to be used for the benefit of the public) an easement for a lighting system, had created a flight path and appropriated air space over his land would be admitting that air and space may be appropriated or possessed.” The judge went on to say, “In my view, air and space are not susceptible of ownership and fall in the category of res omnium communis (space as the common heritage of mankind), which does not mean that the owner of the soil is deprived of the right of using his land for plantations and constructions or in any way which is not prohibited by law or against the public interest.” The view taken was that the owner of land has a limited right in the air space over his property; it is limited by what he can possess or occupy for the use and enjoyment of his land. By putting up buildings or other constructions the owner does not take possession of the air but incorporates something to the surface of his land. That which is annexed or incorporated to his land in turn becomes part of the property he owns.

The necessity required for the enjoyment of the air space refers to the actual and practical utilisation which the owner can afford over his land.

b) Sweetland v Curtis Airports Corporation c) Madam Chah Siam v Chop Choy Kong Kongsi d) Guan Soon Tin Mining Co. v Ampang Estate Ltd Common law principles apply to claims for disturbance of the right to support. When a subsidence occurs to a neighbour’s land, he who causes the subsidence is liable in damages. Where there is a lapse of time between the excavation of land and the occurrence of the resulting subsidence and during the interval a change has taken place in the ownership or occupation of the land, the new occupier is under no liability. This was an appeal from the decision of the High Court. The respondents were owners of certain lands which they have developed as a housing estate. The appellants were miners holding a lease over land lying south of the respondents’ property. A minor landslide occurred on the appellants’ land on 29 December 1966 due to heavy rain and caused damage to the respondents’ property. A further slip occurred in February 1967 and others subsequently. The respondent issued a writ on 21 May 1968 for damages claiming the sum of RM501,991.29 for the damage caused to their property. In the court below the question for determination was whether the appellants were under a legal obligation to support the respondents’ land according to common law principles which have been given statutory recognition by s 44(1)(b) of the National Land Code 1965 and various provisions of the Mining Enactment (FMS Cap 147), especially ss 16(vi) and 134; and if they were whether the presence of a concrete drain on the respondents’ land disentitled them to this right of support. The respondents sought to prove (i) that the appellants carried on mining on the adjacent land, and (ii) that ‘by reason of such working’ the appellants had suffered damage to this property. The appellants did not dispute the damage, but they denied liability, therefore. The trial judge found them liable. 6. Do squatters has any rights under the NLC? Answer: S 48 of NLC on no adverse possession against the state where no title to state land shall be acquired by possession, unlawful occupation or occupation under any licence for any period

whatsoever. In other words, persons who have illegally occupied state land such as squatters may not have claim to have any right to have such land alienated to them based on any long period of occupation. Looking at the case of Hamidah Hamzah v Mat Nasir Ismail. Also, Sidek bin Haji Mohammed v Govt of Perak. In this case, the appellant came to Perak and opened a jungle area in Kg Gajah. The others settled in the area. The govt resettled some settlers to the land that the appellant was occupying. The appellants were given notice to vacate the land. The appellant claimed that they were entitled under the law to be in possession of the land that they were pioneered and occupied. Appellant’s ground of support: The DO had promised them 3 acres of padi land subjected to successful interviews. Utusan Malaysia published an article stating that the State Director of Land and Mines promised each pioneer settler 5 acres of padi land. However, the govt of Perak contended that the appellant had no cause of action in law or equity as they were squatters. Thus, it was held by the Federal Court that the appellant had no cause of action in law or equity as they were squatters by applying s 48. The only way to obtain state land is way of NLC. 7. Labu and Labi bought a piece of land next to each other. Labu dug a huge fishpond on his land to rear fish. Recently, Labi had his house renovated. The renovation included demolition of part of his building. Due to a heavy downpour, Labu’s fishpond collapsed and water flowed into Labi’s land. Labu wants to bring an action against Labi because he believed that the heavy construction being carried out on Labi’s land caused his fishpond to collapse. Advise Labu whether he will succeed if he sues Labi by citing relevant authorities. Issue: Whether Labu can recover the loss suffered under the right support from Labi? Law: Section 44(1)(b) of NLC 1965 on right of support A situation where a landowner has a right to the support of his land provided its in a natural state by any adjacent land. Why necessary? 3 points to it. There are few conditions to be entitled to right of support:

a) Land at lower level must support the land above it b) The land must be adjoining to each other c) The land is in its natural state - Land that is unburdened by buildings and unweakened by excavations - Basically, the landowner done nothing to the land d) No additional support or strength to be given beyond what the land naturally had – cannot expect add support if its already in a weaken state *all conditions must be fulfilled Case: Madam Chah Siam v Chop Choy Kong Kongsi (1939) Application: Labu claimed that due to the demolition of the building done by Labi, he suffered loss. Looking at the conditions, The first condition: Labi must support Labu’s land. X fulfilled as Labi has done something that is demolition of building which caused the water flowed from Labu to Labi. Second condition: And in this question, they live next to each other. Third condition: x fulfilled as it is not in a natural state. Labu’s land burdened with excavation when he made the fishpond in his land. Labu cannot succeed to claim under right to support under NLC as it does not fulfil all the conditions but can claim under torts.

8. Syarikat Nilampuri Cahaya Sdn Bhd is the registered owner of a piece of alienated land in Ipoh. The company applied and was granted a permit to extract marble from land. The company then discovered that the rock materials contained gold deposits. Advise Syarikat Nilampuri Cahaya Sdn Bhd whether the permit allows the company to extract gold deposit as well. 9. What is TOL?

s.46(1)(b) – if there is a non payment of rent or breach of condition by the proprietor of the land, the state authority will have the right to forfeit. But the forfeiture will need to gazetted first s.46(1)(c) – refers to proprietor died without any waris then it will revert back to SA so how SA will know about this? – tak bayar cukai, file notice of claim but none responded so the SA can assume that theres no waris to the land after proprietor died s.47 – every building that was built in that land that was supposed to revert back to the SA will follow too and no compensation will be given to the owner of the building....