TUTORIAL 5

WRITTEN EXERCISE

There is a 100-year old forest in a new township, Kota Desiree. A beautiful lake lies in the centre
of the forest. These were discovered when the nearby area was cleared for the development of a
few housing projects. The picturesque sceneries around the lake accompanied with the serenity of
the surrounding old trees have since attracted the attention of the public.

The lake is located in the deep centre of the forest and it is inaccessible by modern vehicles. Lately
a group of nature lovers, named ‘Friends of Nature’, found that there is a route to the lake which
will save them from a half-day jungle trekking. However, it is impossible for them to use the route
now as it cuts through the fenced vacant land owned by Mimi. The group also discovered that the
route will cause the least harm to the nature.

Advise ‘Friends of Nature’ on the above matter. How would your advice differ if Mimi refuses to
talk to them when the approach her?
………………………………………………………………………………………………………

Question calls for discussion on the public right of way that is being requested by the Friends of
Nature (FON) group. Can the FON group acquire the land by the public right of way in order to
create a route that will cause the least harm to the nature?
A right of way could be acquired by the Land Administrator by the virtue of s 387 of the National
Land Code (NLC), where it should be regarded as a public terminal is interpreted as foreshore,
river, railway station or public road. In this situation, the river qualifies the requirement of it to be
a public terminal. Therefore, the LA can acquire the by the right of way.Since the land was used
for a public purpose where it might reduce the harm to the nature, this is a public right of way by
virtue of s 389 of NLC where the right of way is used for the benefit of the public .A public right
of way can be established by proof of dedication. The dedication is presumed from evidence of
the use of the way made by the public, of the actions, or inactions, of the landowner during the
relevant period.In the case of Lye Thean Soo v Syarikat Warsaw the Supreme Court had an
opinion that public rights of way may arise in two ways. They are either provided by statute, or
they are created by dedication of the soil to the public use by the owner and acceptance of the
public.
For the land to be acquired by right of way, Friends of Nature could seek the State Authority or
Mimi to apply to the Land Administrator with no form if he thinks expedient by the virtue of s
390(1) of NLC. The Land Administrator shall hold an enquiry or investigation by Virtue of s
390(2) of NLC. In the case Thankam de Silva v Pentadbir Tanah, Daerah Larut dan Mantag it
was held it is the discretion of LA whether or not to hold an enquiry. The Land Administrator
where he receives an application for a private right of way, shall either hold an enquiry or make
such other investigation as he thinks appropriate. If he has sufficient facts, may decide without
holding an enquiry. S 390(3) stipulates that LA shall make an order if satisfied that it is expedient
to create a private or public LAROW.
Next is the procedure of the creation of LAROW. Section 391 of NLC stipulates as soon as may
be after making an order for the creation of a Land Administrator's right of way, the Land
Administrator shall cause the route of the right of way to be surveyed and cause to be delivered
to him the issue document of title of any land affected by the right of way.
In s 392 of NLC the cost of surveying, constructing, maintaining or repairing a Land
Administrator's right of way shall be borne in the case of a public right of way, by the State of
Authority. In the case, Ng Men Soon & Satu Lagi v Pentadbir Tanah Daerah Muar & Satu Lagi,
it was held that Repairs to be borne by the defendants (applicant) to the plaintiffs. In the s 393
compensation shall be payable to any person for the use of his land as a LAROW and for any
damage suffered in respect of trees, crops, building as a result of LAROW. In the case Che Nik
bte Bakar v Pentadbir Tanah, Kuala Krai, it was held the appellant was adequately compensated
for the right of way and it was duly granted and adequately compensated , including the payment
of cost of survey, maintenance, construction and repair.
In the case Mamat Yan v Land Administrator , Kota Bharu Land Office & Anor, Sulaiman Daud,
J opinioned that since the respondent has complied to all procedures prescribed by the NLC
including the delivery of notice and enquiry and the conduct of the delivery as well as being
satisfied with the fact that the learned trial judge had also considered the fact that there is no other
access to the said land , thus the judge upheld the decision of the Land Administrator in granting
the right of LAROW.
Just in case Mimi had an objection, the can have an appeal to the court by the virtue of s 418(1) of
NLC which stipulates that any person or body aggrieved by any decision under this Act of the
State Director, the Registrar or any Land Administrator may, at any time within the period of three
months beginning with the date on which it was communicated to him, appeal therefrom to the
court. Owner of the burdened land may apply to cancel the LAROW. 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. In the case Si Rusa Inn, The grantee was granted a private LAROW against the
landowner for access from the grantee’s land to the beach. There is another access to the beach but
it would cover a much longer distance. (1 or 2 kilometres). The issue was whether it is expedient
to create a right of way. The court held that the expedient means more than mere convenience or
pleasure. There must be something more than just mere inconvenience or convenience; some
situation that partakes of gravity or urgent necessity and there were no exceptional circumstances
here which could have impelled the Collector to make the order. Therefore, Mimi should prove
that there is an exceptional circumstances which could impel the Land Administrator from
acquiring the land by right of way.
In a conclusion, the land can be acquired by the way of public right of way by the FON group
through Land Administrators. And arising to Mimi’s objection, a court appeal can be made to
acquire the land by LAROW.