Land Administrator’s Right of Way

(LAROW)

Sharifah Zubaidah(May 2013)

Definition of LAROW:

• It is a right of way created by the Land Administrator over alienated

land under section 388 NLC to provide access from that land to a

public terminal.

Why LAROW?

• Land ‘A’ is ‘landlocked’. No access to public road.

Land A Land B

Land C

Land D

Public Road

Meaning of ‘Public Terminal’:

• See s.387• ‘foreshore, or a river, railway

station or public road.’

Nature of LAROW:

• It is an imposed right of way as opposed to an easement which is an acquired right.

• Rights and obligations conferred in a LAROW run with the land. (s.388(2))

Can the landowner affected by LAROW refuse the creation of

LAROW on his land?

• The owner of land affected by the LAROW is bound by the LAROW.

• Thus, cannot refuse the LAROW but may appeal against the decision under s.418.

Two Types of LAROW:

• 1) Private Right of Way• (s.389(1)(a), s.389(2),

s.389(3))

• 2) Public Right of Way• (s. 389(1)(b) and s. 389(4))

A Public Right of Way Can Be Created Outside the NLC, through Dedication.

• Case: Lye Thean Soo v Syarikat Warsaw

• [1990] 3 MLJ 369

Supreme Court observed:

• 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.

Creation of LAROW:

• 1) a) Private Right of Way: Apply through Form 28A (s.

390(1))

b) Apply to LA for creation of Public Right of Way:

Opinion of Land Administrator that creation of the LAROW is

‘expedient’. (s.390(2)(b))

(cont.):

• 2) LA will hold an enquiry or investigate further. (s.390(2))

• 3) LA makes order creating the LAROW, if he is satisfied that it is expedient. (s.390(3)) – Content of Order, see s. 390(4).

(cont. ) :

• 4) Survey conducted on the route of the LAROW. (s. 391(1)(a))

• 5) IDT of burdened land delivered to the LA. (s. 391(1)(b))

• 6) LA makes a memorial of the LAROW in the RDT and IDT. (s.391(2))

Compensation to Owner of Burdened Land?

•Yes, see s.393.

Extinction of LAROW:

•See s. 395• 2 Grounds:

– Failure to comply with conditions.– LAROW no longer expedient.

(cont. ) :

• Mode of extinguishing LAROW:

• 1) LA Holds Enquiry.• 2) Order Extinguishing LAROW.• 3) Cancel Memorial.

Liew Peck Lian & Ors. v The Conservator of Forests, Johore [1961] MLJ 117

• Held:• “Before a right of way can be

granted…the Collector must satisfy himself that access is not

otherwise reasonably available and ‘reasonably’ here certainly does

not mean ‘conveniently’…”

Si Rusa Inn S/B & Ors. v. CLR Port Dickson & Ors. [1987] 1 MLJ 147

• The CLR had granted to the 2nd Resp. a private right of way over land belonging to the 1st App. in order that the 2nd Resp. would have a shorter route to the beach.

• The App. applied to the court against the order of the CLR on the ground that the order was wrongly made as the grantee had an existing access to the shore.

Held:

• 1) When a Collector is satisfied that it is expedient…he should then exercise his discretion properly and reasonably unless exceptional circumstances exist.

( cont. ) :

• 2) ‘Reasonably’ does not mean ‘conveniently’. A private right

of way may not be created out of mere convenience as the circumstances must be such as to show gravity or urgent necessity.

Therefore:

Collector was wrong to make the order.

However,

Even where there exists an alternative route, the LA may

decide that the route is impractical.

Che Nik bt Bakar v PT Kuala Krai [1997] 5 MLJ 516

• An appeal against the discretion of the LA to grant a LAROW on the

ground that there existed an alternative route, e.g. a reserved

road.

Held:

• “The so-called reserved road…is not yet a road…it is still a jungle, sloppy and hilly. It is therefore not reasonable to treat the road reserve as an alternative route to the road.”

Vadivelu v M. Radhakrishnan[1996] 1 CLJ 224

• The court held that it was correct for the LA to create the LAROW even though there 2 other access roads.

• The first road was only passable to light vehicles while the 2nd road was a swampy area prone to floodings.

Thankam de Silva v PTD Daerah Larut dan Matang, Taiping [1995] 4

CLJ 584

• Case concerning whether or not the LA is under an obligation to hold an enquiry under section

390(2) before ordering LAROW?

Held:

• The LA has a discretion whether or not to hold an enquiry under

section 390(2). If he has sufficient facts before him, he may decide on

the matter without holding an enquiry.

See Article:

• Hunud Abia Kadouf,• ‘Public Demands vs. Individual

Interests: An Analysis of the Land Administrator’s Right of Way’

• [2003] 1 MLJ ci