NG CHOK LING v ABDUL GAFFAR KHAN BIN AMIRULLAH

Case Significance

Illustrates the protection the law affords a landowner against a neighbour's unauthorised construction: a neighbour who builds without the necessary local-authority approval and in a manner that trespasses on or interferes with the adjoining owner's rights may be ordered to pay damages and make good the damage, municipal approval being material to the lawfulness of the works.

This High Court decision at Shah Alam concerns a dispute between neighbours over unauthorised construction and its effect on an adjoining property. The plaintiff and the defendant were neighbours in a residential resort-homes development, the defendant's property being located directly behind and one floor above the plaintiff's. The plaintiff complained that the defendant had renovated and constructed a wall on top of an existing retaining wall, and alleged that this had been carried out illegally — without the approval or permit of the local municipal council and not in accordance with the specifications the council required — and that the construction had interfered with the plaintiff's rights, including the right to light and the natural rights attaching to the plaintiff's property, and had damaged the plaintiff's awning. The court examined whether the construction had been carried out without the requisite approval, whether it interfered with the plaintiff's proprietary and natural rights, and whether it amounted to a trespass. It found in the plaintiff's favour on the claim, and its orders included damages together with interest at five per cent per annum on RM50,000 calculated from the date of the writ until full settlement, and an order requiring rectification of the damage, with each party to bear its own costs. Delivered by Judicial Commissioner Hazizah Kassim, the judgment is a useful illustration of the protection the law affords a landowner against a neighbour's unauthorised construction: a neighbour who builds without the necessary local-authority approval and in a manner that trespasses on, or interferes with the natural rights of, the adjoining owner's property may be ordered to pay damages and to make good the damage caused, and compliance with municipal approval requirements is treated as material to the lawfulness of the works. The decision shows the court translating an interference with a neighbour's light and natural rights, and damage to his property, into a monetary award with interest and an order to make good, giving a practical remedy to a homeowner whose enjoyment of his property has been diminished by his neighbour's unpermitted building works.