Land Law 1 slides LAROW

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LAROW

LAROW

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  • 1. Areej Torla areej@iium.edu.my LAND ADMINISTRATOR’S RIGHT OF WAY (LAROW)
  • 2. What is LAROW? A right of way  Created by the Land Administrator  Over alienated land  To provide access between any land and a public terminal  With or without concurrence from the proprietor.  (it is a type of imposed right)  (S 387: “public terminal” means the foreshore, river, railway station, public road)
  • 3.  S 388(1): Power of LA to create LAROW.     S 388(2): LAROW shall run with the land Shall be binding on the land‟s proprietors and occupiers.  binds the successor in title.  2 types of LAROW S 389: 1. Public right of way –for the benefit of the public 2. Private right of way – for the benefit of the proprietor or occupier of alienated land
  • 4. Can a right of way be created through dedication?  Yes, 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.
  • 5.  Case: Lye Thean Soo v Syarikat Warsaw [1990] 3 MLJ 369  Supreme Court:  “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.”
  • 6. Creation of LAROW Sections 390 & 391 1. Apply S390(1)  Private LAROW: make an application in Form 28A  Public LAROW: apply to LA if he thinks expedient, no form. 2. LA hold an enquiry / makes an investigation. S390(2)  Is LA under an obligation to hold an enquiry?  Case: Thankam de Silva [1995] 4 CLJ 584  Held: Discretion of LA whether or not to hold an enquiry. If h has sufficient facts, may decide without holding an enquiry.
  • 7. 3. LA shall make an order if satisfied that it is expedient to create a private or public LAROW. S 390(3) 4. Survey conducted on the LAROW route. S391(1)(a)  Cost of survey:  For public LAROW  borne by the State Authority  For private LAROW  borne by applicant.
  • 8. 5. IDT of the burdened land is delivered to LA. S391(1)(b) 6. LA makes a memorial of the LAROW in Form 28B on the RDT and IDT. S 391(2)(a)(i) 7. Prepare a plan of the LAROW and attach it to IDT. S 391(2)(a)(ii) 8. Return the IDT.
  • 9. Compensation for burdened land  Section 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, buildings…as a result of the LAROW  Case: Che Nik Bakar  adequately compensated
  • 10. Extinction of LAROW  Section 395:  2 grounds: 1. Failure to comply with conditions 2. No longer expedient (e.g. there are many alternative roads)
  • 11.  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.
  • 12. CASES
  • 13. Si Rusa Inn 1978  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)
  • 14.  Issue: whether it is expedient to create a right of way.  Court: 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”  “there were no exceptional circumstances here which could have impelled the Collector to make the order…”
  • 15. Liew Peck Lian 1961 MLJ 117  Court:  A Collector must be satisfied that access was not otherwise reasonably available.  „reasonably‟ did not mean „conveniently‟
  • 16. Che Nik Bakar v PTD Kuala Krai 1997 5 MLJ 516  There exists an alternative road.  However, the alternative route was still a jungle, sloppy and hilly.  It is therefore not reasonable to treat the road reserve as an alternative route…
  • 17. Vadivelu v M Radhakrishnan 1996  There were two alternative access roads:  The first road was only passable for light vehicles.  The second was swampy and prone to flood.  Court: the LA was correct in ordering LAROW.