land law and survey regulation (sghu 3313) · 2019-07-31 · material under a permit or any other...

LAND LAW AND SURVEY REGULATION (SGHU 3313)

WEEK 3-DISPOSAL OF LAND

SR DR. TAN LIAT CHOON07-5530844

016-49755511

OUTLINE

• Introduction

• Alienation By Disposal (S5)

• Reservation By Disposal (S62-S64)

• Disposal By Licence (S65-S75G)

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INTRODUCTION

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Alienation

Initially all land belongs to the State. Then the Stateallows the use or occupation of the land under a title (FinalTitle and Qualified Title), Temporary Occupation of Land(TOL) or by way of reservation or the extraction of rockmaterial under a permit or any other right under theNational Land Code 1965 (NLC).

Upon alienation, when the title is registered for a pieceof land, the right over it passes from the State to the personor body named in the title subject to certain conditions.

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Alienation

In S5 National Land Code 1965, alienate means to disposeof State land in perpetuity or for a term of years, inconsideration of the payment of rent, and otherwise inaccordance with the provisions of section 76 or, when usedin relation to the period before the commencement of thisAct, to dispose of State land in perpetuity or for a term ofyears under a previous land law (not being a law relating tomining).

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Alienation

In S5 also alienated land means any land (including anyparcel of a sub-divided building) in respect of which aregistered title for the time being subsists, whether final orqualified, whether in perpetuity or for a term of years, andwhether granted by the State Authority under this Act or inthe exercise of powers conferred by any previous land law,but does not include mining land.

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Alienation

The end product of alienation is a land title. It serves asan evidence of ownership. With a title, the proprietor cantransfer, lease, charge the land or grant right of easementover it. Basically a land title bears only two particulars - whothe proprietor is and which land he owns.

However, a number of other particulars are included forcertain purposes. E.g., the amount of annual rent,conditions and restrictions are included to remind theproprietor what he has to do and what he cannot do.

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Powers Of Disposal (S42)

(1) The State Authority shall have power under NationalLand Code 1965:

(a) to alienate State land in accordance with the provisionsof section 76;(b) to reserve State land, and grant leases of reserved land;(c) to permit the occupation of State land, reserved landand mining land under temporary occupation licencesissued;(d) to permit the extraction and removal of rock materialfrom any land, other than reserved forest; and(e) to permit the use of air space on or above State land orreserved land in accordance.

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(2) Nothing in this Act shall enable the State Authority:

(a) to dispose of any land for the purposes of mining (within themeaning of the Mining Enactment);(b) to permit the extraction or removal of rock material from anyland for the purpose of obtaining metal or mineral;(c) to dispose of any land for the purpose of the removal offorest produce; or(d) to alienate any land so as to have the effect of less than two-fifths of a hectare of land subject to the category "agriculture" orto any condition requiring its use for any agricultural purposebeing held by more than one person or body, provided that theState Authority may, under exceptional circumstances, alienatesuch land to more than one person or body notwithstanding thatit is less than two-fifths of a hectare.

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State land means all land in the State (including so much ofthe bed of any river, and of the foreshore and bed of the sea, asis within the territories of the State or the limits of territorialwaters) other than alienated land; reserved land; mining land;and any land which, under the provisions of any law relating toforests (whether passed before or after the commencement ofthis Act) is for the time being reserved forest;

Note:i. Limit of territorial waters (State) is 3 nautical miles according

to Essential Power Ordinance 1969.ii. Limit of international waters) is 12 nautical miles (Territorial

Sea according to UNCLOS 1982).

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State authority may alienate land under foreshore andsea-bed in the form of lease not more than 99 years.

Issue Document of Title in the form of registrar officetitle and term in mutatis mutandis to land alienation forsurface of the earth.

• 1 nautical mile in sea (1 nm) = 6080 feet = 1853.18 meter• 1 mile in land = 5280 feet = 1609.34 meter

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Mining land means any land in respect of which a mininglease or certificate granted or issued under any written lawrelating to mining is for the time being in force.

Reserved land means land for the time being reservedfor a public purpose in accordance with the provisions ofsection 62 or of any previous land law.

Forest reserved is any land that reserved as forest underforestry act.

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ALIENATION BY DISPOSAL (S5)

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Alienation

Alienation means disposal of State land:

i. For a period not more than 99 years;

ii. For perpetuity ; where:a) The Federal Government requires the State Authority to

permanently alienate it to the Federal Government orto any Authorized Authority;

b) The State Authority is satisfied that the land will beused for public purposes; and

c) The State Authority is satisfied that there are specialcircumstances that make it appropriate to be disposedas perpetuity .

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Alienation

iii. In return as payment for quit rent;

iv. In return as payment for premium (Sebagai balasanbayaran premium (unless appropriate to be excluded);

iii. Subject to a category of land (if applicable); and

iii. Subject to any conditions and restrictions in interestimposed by the State Authority.

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State Authority Upon Alienation Approval

The State Authority when approving the alienation shalldetermine the following matters:

i. Approved land area;ii. The period of tenure;iii. Yearly quit rent;iv. Premium (if apprecable);v. Land use categori (if applicable); andvi. Express condition and restrictions in interest (if

applicable).

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Persons Or Bodies (S43)

Persons and bodies to whom land may be disposed of;

i. Natural persons other than minors (according to Age ofMajority Act 1971) - 18 years and above;

ii. Corporations having power under their constitutions to holdland such as corporation register under Company Act 1965,Societies Act 1966, Trade Unions Act 1959, cooperativeSocieties Act 1993 etc;

iii. Sovereigns, governments, organisations and other personsauthorised to hold land under the provisions of theDiplomatic and Consular Privileges Ordinance, 1957; and

iv. Bodies expressly empowered to hold land under any otherwritten law such as Federal Lands Commissioner Act,1957,Majlis Amanah Rakyat (MARA), State DevelopmentCorporation etc.

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Other Term And Conditions

a) For land within the Malay reserve area only to theMalays;

b) For land declared as indigenous or indigenous areas ofindigenous people, only to indigenous persons;

c) In Kelantan, only for citizen of Kelantan;d) In Terengganu, Malay tenure for Malay only.

When the title is registered, the title is guaranteed by theState Authority and is indefeasibility. (How about if happenfraud and abuse of power?)

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Right Of Registered Land Owner

Use and enjoy reasonably the extent to which airspaceexists on the surface of the land and to what extent theground below the surface of the earth (subject toconditions).

Transfer, lease, mortgage, liens, tenancy and easementand other transactions.

Subdivision, partition, amalgamation and subdivision ofbuilding.

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Right Of Registered Land Owner

Surrender of whole or part of land.

The retention of the land in its original manner by any ofthe neighbor lands and other existing right on the land.

Where the land is boundary to public stops (sea or river,railway station or public road), it is entitled to exit and entryinto it (land which is considered partly boundary by publicstops even separated by government land or reserve land inconnection with public stops).

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Alienation By Disposal

Upon the approval of alienation of land by StateAuthority, the amount payable to the State Authority by theperson or body to which land alienated to:

i) First year quit rent;ii) Premium (if applicable);iii) Survey fee if land survey done by Survey Department;

andiv) Preparation and registration fee for document of title.

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The payment mentioned above is claimed by the StateAuthority through Form 5A under the National Land Code1965 and if no payment within the prescribed period or theextended period, then the approval will be expiredautomatically.

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First year quit rent payable upon approval of landalienation and to be calculated as below (S94):

i. If the land alienated (title has been registered) beforeSeptember, yearly quit rent shall be payable as from thebeginning of the calendar year in which the land isalienated.

Example:Land alienated on 15 July 2018, first year quit rent shallbe payable is for year 2018.

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ii. If it is alienated after the end of September in that year,yearly quit rent shall be payable as from the followingcalendar year.

Example:Land alienated on 15 November 2018, first year quitrent shall be payable is for year 2019.

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Method to calculate the amount of quit rent and premiumspayable on an alienated land in accordance with the ratesspecified in the provisions of the State Land Rules:

i. Land area computation (S96 of National Land Code1965)

a) In the case of town or village landIf area by hectare, any area less than 1/100 hectare shall becounted as 1/100 (0.01 hectare).

Example:1.246 = 1.25 ha7.308 = 7.31 ha

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If computation of area unit other than hectare (such asmeter square), any area less than one unit shall be countedas per full unit.

Example:1234.30 m2 = 1235 m2 (if rate per 1 m2)1234 m2 = 1240 m2 (if rate per 10 m2)1234 m2 = 1300 m2 (if rate per 100 m2)

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b) In the case of country land or any part of the foreshore or sea-bed

If area by hectare, any area less than 1/10 hectare shall be counted as1/10 (0.1 hectare).

Example:1.246 = 1.3 ha

If computation of area unit other than hectare (such as meter square),any area less than one unit shall be counted as per full unit.

Example:1234.30 m2 = 1235 m2 (if rate per 1 m2)1234 m2 = 1240 m2 (if rate per 10 m2)1234 m2 = 1300 m2 (if rate per 100 m2)

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ii. Money value calculation

a) For all category of land (Town, village, Country,Foreshore, Sea-bed):

Any amount of counts less than RM1 shall be counted asRM1.

Example:RM 50.05 = RM 51

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A land will be returned to government land subject to the State Authorityin the following circumstances (S46 of the National Land Code 1965):

i. Upon the expiry of the term (if any) specified in the document of title[S46(1)];

ii. Upon the publication in the Gazette of a notice under section 130 [anotice published on the making of an order of forfeiture by the LandAdministrator on the grounds of non-payment of rent (S100) or breachof condition (S129)];

iii. Alienated land under Land Office Title (country land less than 4 hectare)which relate respectively to the death of a proprietor withoutsuccessors, and the abandonment of title by proprietors for more than 7years (S351 and S352);

iv. Alienated land owner surrender land to State Authority (S199); andv. Any part of alienated land affected by encroachment by the sea or any

river shall revert to and vest in the State Authority (S49).29

Disposal Of Underground Land

On 23 February 1990 through Act A752 the provisions ofPart 5A of the National Land Code 1965 entitled "Disposalof Underground Land" encompassing S92A to S92i wasintroduced where through this provision, the land belowthe surface of the earth was alienated in the form ofvolume (length x width x high) and known as stratum.

This provisions allows land to be alienated as stratum toseparate owners.

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S92B(1) allows the State Authority to determine thedepth of an alienated land where:

a) It should be noted in the document of title and serve asa express condition; and

b) The land below the prescribed depth limit determinedis subject to the State Authority as the State land [S92B(4)].

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Minimum Depth

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MINIMUM DEPTH

•Federal Gazette P.U.(A) 414on the Rules of the NationalLand Code (Underground Land)(Minimum Depth) wasenforced on 5 December 2006

Minimum Depth

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Class of Land

Agricultural Building Industry

1. Section 92B 6 metres 10 metres 15 metres

2. Section 92E 6 metres 10 metres 15 metres

Minimum Depth

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Agriculture

Building

(Land Surface)

(Land Surface)

6 metres (minimum depth)

y – can apply stratum title



Minimum Depth

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Industry

(Land Surface)




State Authority may alienate stratum in the form of:

a) Any underground State land below State, anyunderground land which is a State land by virtue ofS94(B)4 below alienated land with depth specified indocument of title (S92C);

b) State land which is given Temporary Occupation Licence(TOL) under S65 or combined TOL and permit toextract, remove and transport rock material under S69,can only alienated (S92C) after TOL or TOL and permitto extract, remove and transport rock material expiredor terminated with compensation S44(1)(a);

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c) A.A (Approved Application) land and A.O (ApprovedOccupation) land are still considered as state land.However holders of A.A and A.O land have an interest inthe land. To avoid confusion and problem, it is moreappropriate for A.A land and A.O land are registered astitle;

c) The provisions of the National Land Code 1965 on landalienation are applicable 'mutatis mutandis' toalienation of under ground land subject to anymodifications by the Chief Minister and CooperativeDevelopment, with the approval of the National LandCouncil by gazetted in the Federal Government Gazette.

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Mutatis Mutandis

Mutatis mutandis is a Latin phrase that means "by changingthose things which need to be changed.” The phrase can alsomean “having substituted new terms.” Mutatis mutandis relatesto due alterations to be made in similar statements. For example,the phrase can be used in contract clauses such as, "The changesproposed for the first contract apply mutatis mutandis to allother contracts." Mutatis mutandis is used to gain a reader'sattention to differences between a statement and a similar butdifferent earlier statement. This phrase refers to matters that aregenerally same but can be altered according to need. Changes insimilar statements will be regarding points in detail such as thename, title, and address of the parties.

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The State Authority when alienate stratum shall:

a) Determine or explain the usefulness of the stratumwhether related or not to the use of land above theearth surface;

a) Determine the conditions in which the stratum issubject to use which including:

i. Conditions to provide the necessary protection andsupport to all land and underground land which shareboundary with the stratum;

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ii. Conditions to provide one or more access entry roadwhich the State Authority thinks reasonable from thewhole of the stratum to the land surface of the stateland or to other places proposed by the applicant andapproved by the State Authority;

iii. The conditions by the State Authority think areappropriate with any structural in construction work tobe carried out within the stratum including conditionswhich protect the rights of State Authority under S45(2)on the extract of rock mineral, the transport of rockmaterial or forest produce within the stratum lot;

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iv. The conditions by the State Authority think are suitablefor the protection of rights under S58 that is toimplement, construct or install any drainage, sewerage,pipe, cable or wiring for waterways and any materialsthrough above, under or across stratum lot and otherrelated work, and subsequently inspect, use, maintain,repair, remove or allocate and other related works;

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v. Conditions that fix the expenditure of the transport,transfer or reallocate of any drainage, sewerage, pipe,cable or wiring and related work is borne by the ownerof the stratum; and

vi. Other conditions that the State Authority think thatappropriate such as the provision of barriers andprotection from fire and flood, good air circulation,public access between stratum, emergency exit andothers.

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All conditions shall be registered in the document of titleand as express condition of the stratum.

The owner of any land subject to S44(1)(a) may apply inwriting under S92D(1) to PBN for underground land underhis land:

a) Used for separate purposes and unrelated to legitimateuse of the earth above surface; and

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b) Granting to him under S92C to be held in separate titlewith either the whole or part of the land above surface.Through this application the land owner seems to havesurrendered its rights under S44(1)(a) to PBN as Stateland for the land below and up to the depth limit statedin the application.

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Such application shall be applied in advance by anyperson or body having a registered interest on the land oroccupying the land under a tenancy exempt fromregistration unless it is in certain circumstances exemptedby the State Authority.

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Fee to be paid upon approval:

a) First year quit rent;b) Premium;c) Survey fee (if survey by Survey Department);d) Fee for preparation and registration of registry title;e) Amendment premium for land above surface (if

needed) in situation where original land owner applyfor stratum alienation.

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Calculation of quit rent and premium:

a) Quit rent for stratum alienation calculate according tocubic meter;

b) For all categories of land whether country land, villageland, town land or foreshore or seabed, area that lessthan 1cubic meter should count as 1 cubic meter; and

c) For application under S92D(1), premium that charged isin the form of additional premium to land above surfaceof earth. Land above surface of the earth can becharged for new quit rent.

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Restriction to stratum title:

a) Specific permission need to be obtained before:

• Transporting rock material out from the lot (above orunder ground surface).

• Extract any rock material.

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Alienation of foreshore and seabed:

i. State Authority shall alienated foreshore and seabed inlease not more than 99 years;

ii. Title to be registered under Registry title; and

iii. Conditions of ‘mutatis mutandis’ under provision ofalienation of underground land.

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RESERVATION BY DISPOSAL(S62-S64)

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Reservation

The State Authority may by notification in theGovernment Gazette reserve any government land forpublic purposes. Notices in the Gazette shall:

i. The purpose of reservation of the specific land;ii. The meaning of reservation of the specific land;iii. Determine the officer to regulate the specific reserved

land; andiv. To make clear statement for land gazette under

reserved for public purpose.

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Reservation

Copy of a notice or notification affecting land to bepublished in accordance with the provisions in S433:

i. Affixed in a conspicuous position, on the land and onthe penghulu's office or balai in the area in which theland is situated;

ii. In that area, on such court-houses and mosques (if any)and in such markets and other public places (if any) asthe State Director thinks fit; and

iii. Where the State Authority considers that publication ina newspaper is desirable, published in such newspaperscirculating in the State as the State Director thinks fit.

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To Lease Reserved Land (S63)

The State Authority may from time to time grant leasesof the whole or any part of the land for any period notexceeding 21 years:

a) Application made by the officer for the time beinghaving the control of any reserved land; or

b) Application made by any person or body who has firstobtained the approval of that officer.

The lease granted is normally subject to expressconditions specified in Form 4E(4AA) for any period notexceeding 21 years.

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Conditions Of Lease

Every lease granted shall expire on the day as stated in Form4E(4AA) NLC 1965.

The lease shall also expire upon the death of a person ordissolution of a body holding it.

Can be canceled at any time without any compensation whenbreach of the provisions in the lease.

Can be canceled at any time before expiry of lease withcompensation agreed or set according to the provision in S434.

Other conditions that set in the lease.54

Conditions Of Lease

Land under public reserve can be leased to:

a) Any person or body under S43; and

b) Other conditions:i. For land under Malay reserved area only for Malay;ii. For land under indigenous person reserved area only

for indigenous person; andiii. In Kelantan, only for people born in Kelantan.

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Revocation Of Reservation Of Land Reserved For Public Purpase (S64)

The reservation of any land for a public purpose may berevoked by the State Authority at any time, either as respects thewhole of the land or as respects any part.

Where it is proposed to revoke any reservation, notice of theproposal shall be published in the Gazette together with detailsof a time and place at which an enquiry will be held by the StateDirector of Lands and Mines Office.

Copies of any notice shall be published in accordance with theprovisions of section 433.

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Revocation Of Reservation Of Land Reserved For Public Purpase (S64)

State Authority shall not revoke the reservation until it hasconsidered a report by the State Director setting out the nature ofany objections to the proposal received by him at the enquiry, andhis observations on the proposal generally.

After considered the report, State Authority may revoke thereservation, either in accordance with the proposal as published, orin accordance with the proposal modified in such respects as theState Authority may consider necessary or desirable.

Any lease of reserved land subsisting at the time the reservationis revoked shall continue in force notwithstanding the revocation.

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DISPOSAL BY LICENCE(S65-S75G)

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Temporary Occupation Licence

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Temporary Occupation Licence (TOL) As A Form Of Disposal Of

Land By The State Authority

As provided in S42(1) National Land Code 1965, thegranting of a TOL in Form 4A is one of the ways in which theSatte Authority disposes of land i.e. One way in which theState Authority allows certain land to be occupied or used.

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Land In Respect Of Which A TOL May Be Permitted

S65(1) National Land Code 1965 specifies that the StateAuthority may permit the temporary occupation under licence inrespect of any of the following lands:

a) State land;b) Mining land not for the time being used for purposes of

mining; andc) Reserved land not for the time being used for purposes for

which it was reserved.

A Temporary Occupation Licence (TOL) cannot be issuedwithin a permanent reserved forest as defined in the NationalForestry Act 1984 as adopted by the States.

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Person/Body To Whom A TOL Can Be Issued

A Temporary Occupation Licence (TOL) can be granted only toany of those qualified under S43 and Part Thirty-Three(A) ofNational Land Code 1965. One TOL should be issued only to one person or body.

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Limitation Of Purpose For Which A TOL Can Be Issued

As provided in S65(2) National Land Code 1965, a TOL can beissued for any purpose other than the one prohibited by S42(2)National Land Code 1965. This means that a TOL cannot be issuedfor the purpose of mining or removal of forest produce. It followsthat extraction or removal of rock material from any land for thepurpose of obtaining metal or mineral there from is also notpermissible.

Authority To Issued A TOL

S66 National Land Code 1965 provides that in the absence ofany contrary direction by the State Authority, a TemporaryOccupation Licence (TOL) can be issued as follows:

a) By the Land Administrator in respect of State land;b) By the Land Administrator in respect of mining land provided

that the Senior Inspector of Mines or such other officer asmay for the time being be charged with the administrationwithin the State of any written law relating to mining and thelessee have approved the granting of the TOL; and

c) By the Land Administrator in respect of reserved landprovided that the officer who is in control of it has approvedthe granting of the TOL.

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Authority To Issued A TOL

The contrary direction of the State Authority may be ofthe effect that a Temporary Occupation Licence (TOL)cannot be issued by the Land Administrator or a TemporaryOccupation Licence (TOL) can be issued by the LandAdministrator only when a certain body or committee hasgiven its consent.

Is respect of reserced land, S66(c)(ii) provides that aTemporary Occupation Licence (TOL) can be issued by theofficer who is in control of it if is being authorised to do soby the State Authority.

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Terms And Conditions Of TOL

By virtue of S67(1) and (2) and S68 National Land Code 1965,every TOL issued is subject to the following conditions:

a) It will expire at the end of the year in which it commencesunless it is for the purpose of enabling any public exhibitionor entertainment to be held;

b) It should not be used for any purpose other than that statedin it;

c) It should not be used for the planting of permanent crops;

d) It should not be used for the erection of any permanentbuilding or other permanent structure;

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e) It may be renewed annually;

f) It is not capable of assignment;

g) It shall terminate in the event of the death of the person orthe dissolution of the body to whom it was issued;

h) It may be cancelled immediately and without payment ofcompensation upon the breach of any provision to which it issubject; and

i) It may be cancelled upon payment of compensation [to beagreed or determined in accordance with S434(Determination, and payment, of compensation) NationalLand Code 1965] at any time before the date of expiry.

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The conditions could be different if the State Land Rulesspecifies a different expiry date for a Temporary OccupationLicence (TOL) and contains a provision for assignment. Alicence may contain other conditions as prescribed in theState Land Rules.

As stated in S68 National Land Code 1965, a TemporaryOccupation Licence (TOL) issued to a body shall notterminate upon its dissolution in a situation as provided inS416 (Substitution of transferee for transferor in documentsof entitlement).

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Requirement Of Deposits

S68A National Land Code 1965 provides that the LandAdministrator can request the person or body to whom aTOL is issued to deposit with him such sum of money as theLand Administrator thinks reasonable as security for therehabilitation of the land when the Temporary OccupationLicence (TOL) expires. But this can only be done if there is adirection by the State Authority.

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Renewal Of A TOL

S66 and S67(1) National Land Code 1965 provide that aTemporary Occupation Licence (TOL) may be renewed annually.S67(3) provides that sunject to the condition under which a TOL isissued, the Land Administrator may on the application of a licenseerenew such licence for a term not more than one calender year.

Besides this, by virtue of S66, Land Administrator is to renew aTOL only if there is no contrary direction by the State Authority. Astated in the proviso to S67(3), there shall not be more than threerenewals by the Land Administrator in respect of a TOL unless aprior written approval of the State Authority has been obtained.S67(4) provides that the renewed is to be effected by endorsing anote of renewal and the date of its intended expiry on the existinglicence.

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Combined Temporary Occupation Licence And Permit

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Form And Purpose Of A Combined TOL And Permit

A combined Temporary Occupation Licence (TOL) andpermit to extract and remove and transport any rockmaterial is issued in Form 4B of National Land Code 1965.

The purpose of issuing such a licence is to cater for asituation where extraction of rock material cannot be donewithout the rights of occupancy. With a combinedTemporary Occupation Licence (TOL) and permit, thelicensee can occupy the land and at the same time extract,process, remove and transport the rock material.

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Land In Respect Of Which A Combined TOL And Permit May Be Issued

As provided in S65(1) National Land Code 1965, a combinedTemporary Occupation Licence (TOL) and permit to extract andremove and transport any rock material can be permitted inrespect of any of the following lands:

a) State land;b) Mining land not for the time being used for purposes of

mining; andc) Reserved land not for the time being used for purposes for

which it was reserved.

A combined Temporary Occupation Licence (TOL) and permitcannot be issued within a permanent reserved forest as definedin the National Forestry Act 1984 as adopted by the States.

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Person/Body To Whom A Combined TOL And Permit Can Be Issued

A combined Temporary Occupation Licence (TOL) and permitcan be granted only to any of those qualified under S43 and PartThirty-Three(A) of National Land Code 1965.

One combined Temporary Occupation Licence (TOL) andpermit should only be issued to one person or body.

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Limitation of Purpose for Which a Combined TOL and Permit can be Issued

As provided in S69(2) National Land Code 1965, a combinedTemporary Occupation Licence (TOL) and permit cannot beissued for the purpose of obtaining metal or material from theland. Such a combined TOL and permit also cannot be issued forthe purpose of removal of forest produce.

Authority To Issued A Combined TOL And Permit

As provide in S66 National Land Code 1965, in the absence of anycontrary direction by the State Authority, a combined TemporaryOccupation Licence (TOL) and permit can be issued as follows:

a) By the Land Administrator in respect of State land;b) By the Land Administrator in respect of mining land provided that

the Senior Inspector of Mines or such other officer as may for thetime being be charged with the administration within the State ofany written law relating to mining and the lessee have approvedthe granting of the combined Temporary Occupation Licence (TOL)and permit; and

c) By the Land Administrator in respect of reserved land providedthat the officer who is in control of it has approved the granting ofthe combined TOL and permit.

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Authority To Issued A Combined TOL And Permit

The contrary direction of the State Authority may be ofthe effect that a combined Temporary Occupation Licence(TOL) and permit cannot be issued by the LandAdministrator or it can be issued by the Land Administratoronly when a certain body or committee has given itsconsent.

Is respect of reserced land, S66(c)(ii) provides that acombined Temporary Occupation Licence (TOL) and permitcan be issued by the officer who is in control of it if is beingauthorised to do so by the State Authority.

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Terms And Conditions Of Combined TOL And Permit

By virtue of S69 National Land Code 1965, everycombined Temporary Occupation Licence (TOL) and permitissued is subject to the following conditions:

a) It will expire at the end of the term specified in it;

b) It should not be used for any purpose other than theextraction, processing and removal of rock material asstated in it;

c) The quantity of rock material extracted should not beexceed the quantity as specified in it;

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d) It is not capable of assignment;

e) It shall terminate in the event of the death of the person orthe dissolution of the body to whom it was issued;

f) It may be cancelled immediately and without payment ofcompensation upon the breach of any provision to which it issubject; and

g) It may be cancelled upon payment of compensation [to beagreed or determined in accordance with S434(Determination, and payment, of compensation) NationalLand Code 1965] at any time before the date of expiry.

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The conditions could be different if the State Land Rulesspecifies a different expiry date for a Temporary OccupationLicence (TOL) and contains a provision for assignment. Acombined Temporary Occupation Licence (TOL) and permitmay contain other conditions as provided in the State LandRules.

By virtue of S69(2), S73 is also applicable to a combinedTOL and permit and as such it is not terminated upon thedissolution of a body in a situation under S416 (Substitutionof transferee for transferor in documents of entitlement).

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Maximum Period For Which A Combined TOL And Permit Can Be

Issued Unless otherwise prescribed in the State Land Rules, themaximum term of a combined Temporary OccupationLicence (TOL) and permit should not exceed five years. Thisis provided for in S69(1)(b) National Land Code 1965.

The National Land Code 1965 does not provide for therenewal of a combined Temporary Occupation Licence (TOL)and permit.

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By virtue of S69(2) National Land Code 1965, if directedby the State Authority, the Land Administrator is to requestthe person or body to whom a combined TemporaryOccupation Licence (TOL) and permit is issued to depositwith him such sum of money as he may consider reasonableas security for the following:

a) The due performance and observance of the provisionsto which the permit is subject; and

b) The rehabilitation of land to which the permit relatesupon its termination.

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Permit To Extract, Remove And Transport Rock Material

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Permit As A Form Of Disposal Of Land By The State Authority

As provided in S42(1) National Land Code 1965, thegranting of a permit to extract, remove and transport rockmaterial in Form 4C is one of the ways in which the SatteAuthority disposes of the land.

These conditions are not applicable to land subject tothe Third Schedule of National Land Code (Penang andMalacca Titles) Act 1963 (Act 518).

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Land In Respect Of Which A Permit May Be Issued

S70 National Land Code 1965 provides that a permit toextract, remove and transport rock material can be issuedin respect of any of the following lands:

a) State land;b) Alienated land;c) Mining land; andd) Reserved land.

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Person/Body To Whom A Permit Can Be Issued

A permit can be granted only to any of those qualifiedunder S43 and Part Thirty-Three (A) of National Land Code1965. In the case of a corporation, as provided in theprovisio to S43, it is not necessary for it to have power tohold land in order for it to be able to apply for and beissued with a permit to extract, remove and transport rockmaterial.

One permit should only be issued to one person or body.

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As provided in S70 National Land Code 1965, a permit forthe extraction, removal and transport of rock materialcannot be issued for the purpose of obtaining metal ormineral from the land. Such permit also cannot be issuedfor the purpose of removal of forest produce.

Limitation Of Purpose For Which A Permit Can Be Issued

Authority To Issued Permit

As provided in S71 National Land Code 1965, the absence of anycontrary direction by the State Authority, a permit can be issued asfollows:

a) By the Land Administrator in respect of State land;b) By the Land Administrator in respect of alienated land provided

that the proprietor of the land has consented if the permit is to begiven to another person;

c) By the Land Administrator in respect of mining land (provided thatthe Senior Inspector of Mines or such other officer as may for thetime being be charged with the administration within the State ofany written law relating to mining and has given his approval) tothe person/body entitled to the benefit of the mininglease/certificate or to any person or body with the consent of thatperson of body; and

d) By the Land Administrator in respect of reserved land providedthat the officer who is in control of it has approved the granting ofthe permit.

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Authority To Issued Permit

The contrary direction of the State Authority may be ofthe effect that a permit cannot be issued by the LandAdministrator or it can be issued by the Land Administratoronly when a certain body or committee has given itsconsent.

Is respect of reserced land, S71(d)(ii) provides that apermit can be issued by the officer who is in control of it ifis being authorised to do so by the State Authority.

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Terms And Conditions Of Permit

By virtue of S72(1) and (2) and S73 National Land Code 1965,every TOL issued is subject to the following conditions:

a) It will expire at the end of the year in which it is issued eventhough the total quantity of rock material specified in it hasnoy by then been extracted, removed and transported;

b) It should not be used for any purpose other than theextraction, removal and transportation of rock material asstated in it;

c) The quantity of rock material extracted, removed andtransported should not be exceed the quantity as specified init;

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d) It is not capable of assignment;

e) It shall terminate in the event of the death of the person orthe dissolution of the body to whom it was issued;

f) It may be cancelled immediately and without payment ofcompensation upon the breach of any provision to which it issubject; and

g) It may be cancelled upon payment of compensation [to beagreed or determined in accordance with S434(Determination, and payment, of compensation) NationalLand Code 1965] at any time before the date of expiry.

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The conditions could be different if the State Land Rulesspecifies a different expiry date or contains a provision forassignment. A permit may contain other conditions asprescribed in the State Land Rules.

It is to be noted that the National Land Code 1965 doesnot provided for the renewal of a permit.

S73 provides that a permit does not terminate upon thedissolution of a body under S416 (Substitution of transfereefor transferor in documents of entitlement).

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S74 National Land Code 1965 provides that, if directed bythe State Authority, the Land Administrator is to requestthe person or body to whom a permit is issued to depositwith him such sum of money as the Land Administratorthinks reasonable as security for the following:

a) The due performance and observance of the provisionsto which the permit is subject; and

b) The rehabilitation of land to which the permit relatesupon its termination.

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Permit To Use Air Space Above State Land And Reserved Land

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Power To Approve The Issue Of Permit To Use Air Space

The National Land Code 1965 in S75A gives the power to theState Authority to approve the issue of a permit for the purposeof erecting, maintaining and occupying a structure in respect ofthe following:

a) On State land or reserved land; or

b) over State land or reserved land as an adjunct to anystructure on the adjoining land.

The expressions ‘State land’ and ‘reserved land’ are defined inS5 National Land Code 1965.

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Period Of A Permit

The State Authority can approve the issue of a permit for aperiod of not exceeding 21 yeras.

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Consent Of Officer In Control Of Reserved Land

If the application for a permiy is in respect of reserved land,the consent of the officer in control of th reserch land hasto be obtained before the approval can be given (S75ANational Land Code 1965).

Approval Of The Structure Using The Air Space

The structure using the air space must be approved by theappropriate planning authority [S75B(1)(b) National Land Code1965]. The expression ‘planning authority’ is defined in S5National Land Code 1965. At present the laws on town andcountry planning are as follows:

a) Part IX of FMS Town Boards Enactment (FMS Cap. 137);b) Part IX of the Johor Town Boards Enactment (No. 118);c) Part VIA of the Kelantan Municipal Enactment 1938;d) Part IX of the Terengganu Town Boards Enactment 1355;e) Town and Country Planning Act 1976 (Act 172); andf) Federal Territory (Planning) Act 1982 (Act 267).

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Approval Of The Structure Using The Air Space

The approval of the structure will be in any of the following forms:

a) A planning permission under Town and Country Planning Act 1976(Act 172);

b) A development order under Federal Territory (Planning) Act 1982(Act 267); or

c) A decision of a local authority or a body vested with powersrelating to town planning under the Enactments.

It is to be noted that in areas where these laws are not applicable,the State Authority may require the approval of the relevant DistrictOfficer to be obtanied. It is doubtful whether any approval is requiredin areas subject to these laws if there is no requirement of approvalunder them regarding such structure.

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Form And Conditions Of Permit

The permit is in Form 4D as stated in S75C National LandCode 1965. It is subject to an annual payment and to theterms and conditions as stated in S75D National Land Code1965.

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Assignment Of Permit

The permit cannot be assigned except with the approval ofthe State Authority (S75E National Land Code 1965).

Requirement Of Deposit Before Issuing A Permit

Before issuing a permit to air space, the Land Administratorhas to collect a sum of money or other form of security to ensurethat the permit holder performs and observes the terms andconditions of the permit. But the Land Administrator can do thisonly if he is directed to do so by the State Authority (S75FNational Land Code 1965).

As such the Land Administrator has to recommend to theState Authority to direct him to do so if he thinks that thedeposit or other form of security is necessary. Therecommendation is to be included in the memorandumsubmitted by the Land Administrator for consideration of theState Authority in respect of the application for a permit.

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Cancellation Of A Permit Upon Breach Of Condition

The permit can be cancelled by the State Authority if theholder commits a brech of the rule, term or condition to which itis subject without payment of compensation. Following thecancellation, any deposit or security furnished under S75FNational Land Code 1965 will be forfeitedto the State Authority(S75G National Land Code 1965).

The cancellation has to be decided by the State Authority. Assuch when the Land Administrator becomes aware that thepermit jolder has committed a breach of any rules, terms orconditions, he shall submit a memorandum to the StateAuthority to get a decision to cancel the permit. The LandAdministrator on his own cannot cancel the permit.

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Cancellation Of A Permit At The Discretion Of State Authority

S75G National Land Code 1965 provides that the StateAuthority can cancel a permit even when the holder doesnot commit a breach of any rules, terms or conditions. Butin this case, the State Authority has to pay compensation asmay be agreed or determined under S434 National LandCode 1965.

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Annual Payment For A Permit

The annual payment for a permit is to be determined bythe State Authority (S75D National Land Code 1965).Therefore, the Land Administrator has to recommend thisto the State Authority for it to be determined at the timethe application is approved.

The State Authority should also impose a conditionpertaining to the annual payment. This could be to theeffect that each annual payment after the first payment willbecome due on the anniversary date of the issue of thepermit and if it is not paid within a month, the permit willlapse.

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Checklist And Formula Of Air Space Permit (Johor)

• 1 copy of Form Table 1

• 4 copy of Memorandum and Articles (M&A)

• 4 copy of Form 24

• 4 copy of Form 49

• 4 copy of company resolution

• 3 copy of Pre-comp plan

• Submission payment RM30

Once approve, the client need to pay deposit RM10,000 + approval payment

*Need to renew the license once a year with payment RM30. The license is valid for 21 years. 102

Checklist And Formula Of Air Space Permit (Johor)

Formula to calculate the approval payment:

• Area of Air Space require (in meter square) x 21 years x 1/32%from quit rent (total quit rent for involved lots. E.g: total quitrent for lot A + lot B).

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Sample Of Air Space For Link Bridge

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T H A N K YO U

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land law and survey regulation (sghu 3313) · 2019-07-31 · material under a permit or any other...

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