Mohd Noor Ahmad J:

[1] The plaintiff sued the defendant for general damages and exemplary damages based on trespass and nuisance. He also asked for the following declarations and injunctions:

(a) a declaration that the defendant is not entitled to cut or alter the public road access or otherwise appropriate the road reserve so as to deprive the plaintiff of access to his land,

(b) a declaration that the plaintiff is entitled to use and enjoy the road reserve as access to the plaintiff's land or the right of support to the said land,

(c) an injunction to restrain the defendant whether by himself, his servants or his agents howsoever from encroaching onto the plaintiff's land,

(d) a mandatory injunction directing the defendant to forthwith at its own costs reinstate and rehabilitate the ground levels of the plaintiff's land and the road reserve adjoining the said land:

(i) by constructing a reinforced earthwall at the boundary between the defendant's land and the road reserve to the height up to the utmost original ground level, and

(ii) thereafter by backfiling with sand and earth up to the level of the reinforced earthwall,

(e) a mandatory injunction directing the defendant to forthwith at its own costs construct an access to the South-East boundary of the road reserve of the plaintiff's land at a level of 60 meters and for this purpose do construct a reinforced earthwall at both sides of the 66 feet road reserve on the defendant's land to allow for the access,

(f) a mandatory injunction directing that in the execution and completion of the abovesaid works the defendant do comply at its own costs with the earthwork plan and reinforced earthwall details as shown in the Drawings No PB9200 SP1 and No PB9200 CS1 and specifications prepared by the consulting engineers, Messrs Perunding Bakti Sdn Bhd and annexed hereto as Annexure 1, and

(g) an order that the completion of the abovesaid works be evidenced by a certificate of completion to be issued by the aforesaid consulting engineers.

[2] The facts reveal that:

(1) The plaintiff is the owner of lot 1360 and the defendant owns lot 157 situated in Mukim of Cheras, District of Hulu Langat, Selangor. Lot 1360 is separated on its southern boundary from lot 157 by a strip of state land approximately 40 feet wide (hereinafter referred to as "the access reserve").

(2) On trespass, the defendant had carried on development works on its land for the purpose of developing a golf course and a huge residential and commercial complex known as "Bandar Sungei Long". The development had resulted in physical damage to the plaintiff's land as evidenced by a survey conducted on 11 January 1993 and plan (B- 20) prepared by SP2 which shows a steep slope of about 100 feet high and 650 feet long and about 49 feet deep into the plaintiff's land. The slope is sited entirely on the plaintiff's land falling on to the access reserve. The evidence constitutes trespass to the plaintiff's land by the defendant and this is my finding. It is also evident that sometime in February 1996 the defendant, without the plaintiff's consent, constructed a crib-wall on the access reserve part of which is on the plaintiff's land, as confirmed by SD5 and ex P10. This constitutes a permanent trespass on the plaintiff's land by the defendant, and this is also my finding but not for the purpose of finding on liability for permanent trespass.

(3)(a) In respect of nuisance, the claim arises from the withdrawal of soil to soil support and the loss of lawful use of the land by the plaintiff resulting from the physical damage caused by the trespass. This is evidenced by the report of SP5 (consulting engineer) and his testimony, and substantiated by the need to construct a crib-wall on part of the slope by the defendant and the photographic evidence of slope failures.

(b) SP5 stated in his report (B-75) that a soil test was carried out in March 1993 for analysis of slope stability and found that the slope had a safety factor of less than 1 as