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2012 MarsdenLR 1808
HIGH COURT SABAH & SARAWAK SRI AMAN
LIM KEK PING & ANOR – Appellant
Versus
THAI WAH CONSTRUCTION & DEVELOPMENT SDN BHD & ORS – Respondent
[Suit No: 22-1-2006-I (SG)]
The landowner of higher ground cannot obstruct the natural flow of water to lower land, and proper drainage must be maintained to prevent nuisance.
Headnote:(A) Trespass and Nuisance - Claiming injunctive relief and damages concerning encroachment from development project - Land Code - Section 32(1)(b) regarding maintenance of boundary marks and Section 227 defining development - Engineers’ testimony revealed failure to maintain drainage causing water stagnation. (Paras 25, 50, 64).
(B) The plaintiffs successfully proved that the defendants constructed retaining walls and concrete slabs on their land without consent and failed to adequately drain their property. (Paras 12, 64).
(C) The court ruled the 1st defendant liable for trespass and nuisance, ordering them to pay damages and costs, awarding RM10,000 for trespass and RM85,412.60 for earth filling instead of injunctive relief. (Paras 32, 64).
(D) The arguments on statutory authority regarding planning permission from local authorities do not absolve the 1st defendant from liability in tort for nuisance. (Paras 50, 63). (E) Counterclaim by defendants dismissed for lack of legal duty on the part of plaintiffs to provide drainage improvements. (Paras 47, 64).
| Table of Content |
|---|
| 1. plaintiffs claim trespass and nuisance. (Para 1 , 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. court orders temporary measures for plaintiffs. (Para 8 , 9 , 10) |
| 3. defendants deny liability and blame plaintiffs. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20) |
| 4. witnesses examined to support each party's arguments. (Para 21 , 22 , 23 , 24) |
| 5. court evaluates trespass and nuisance claims. (Para 25 , 26 , 27 , 28 , 29) |
| 6. court analyzes impacts of water drainage. (Para 30 , 31 , 32 , 33 , 34) |
| 7. plaintiffs' land condition and duties considered. (Para 35 , 36 , 37 , 38 , 39) |
| 8. court outlines rights of higher vs lower landowners. (Para 40 , 41 , 42 , 43 , 44) |
| 9. discussion on water flow rights established. (Para 45 , 46 , 47 , 48 , 49) |
| 10. examination of statutory authority defense. (Para 50 , 51 , 52 , 53) |
| 11. addressed plaintiffs' need for statutory remedies. (Para 54 , 55) |
| 12. court's conclusion and remedies proposed. (Para 56 , 57) |
| 13. damages awarded and counterclaims dismissed. (Para 58) |
[1] This was a suit founded on trespass and nuisance by the husbandand wife co-owners of a parcel of land against their neighbours who are ahousing development company and three owners of several parcels of adjoining land. The plaintiffs prayed for injunctive relief as well as damages. the defendants disputed the claims and filed acounterclaim against the plaintiffs.
Case Of The Plaintiffs
[2] The plaintiffs are owners and occupiers of Lot 700 of Undup Land District. The area comes under the jurisdiction of Sri Aman District Council(Majlis Daerah Sri Aman or MDSA). The plaintiffs bought Lot 700 in 1997. It is arectangular parcel of land. The front portion of the land is high ground with aspot height of 17 metres (or in other words with an elevation of 17 metres abovesea level). This area comprises one third of the land. It lies next to the roadknown as Long Round Road. A JKR public drain runs along this road.
[3] The plaintiffs constructed a double storey brick house on thispart of the land in 1999. The rear portion of the land comprises two thirds of the land. It is characterised by a sharp drop in spot height. It is lower inheight than the Long Round Road. The lowest spot height recorded on the rearportion is 10.9 metres. This spot height is lower than the invert level (base orfloor level) of the main JKR drain along Long Round Road. The rear portion of the plaintiffs' land shares a common boundary with Lots 99, 190 and 698 of UndupLand District. The 2nd, 3rd and 4th defendants were the respective owners of these Lots. The 1st defendant is the developer of a housing and commercialestate project known as Taman Desa Indah. The 3rd and 4th defendants were alsothe blockquoteectors of the 1st defendant company. The project comprised theabove Lots as well as the adjoining Lots 341, 352, 690, 770 and 77.
[4] The complaint of the plaintiffs was as follows. Prior to thedevelopment of the Taman Desa Indah project, the plaintiffs had used the rearportion of Lot 700 for agricultural activities. PW1 (the 1st plaintiff) told thecourt that he had constructed three fish ponds. He had also constructed a zincshed to store fish food and aqua farming equipment. PW1 and his wife, PW2, hadalso planted fruits like pitaya plants, flower plants, bonsai, orchids, bananaplants, longan trees, durian trees and dabai trees on the land. They also rearedsome poultry. PW1 told the court that he had constructed a perimeter drainaround his house. The water from the front portion of the house flowed to theJKR drain through the perimeter drain. PW1 said as follows:
"The bulk of the surface water from the front portion of my land is discharged to the JKR main drain near the Long Round road. As for the rain water collected from the roof of my house, the bulk of it flow to the perimeter drain around my house and then channeled to the pipes that discharges the water to the JKR main drain along the Long Round road".
[5] As for the water from the rear portion, PW1 said as follows:
"The s
