BIE2014 Real Estate Law 1

Dr. Sr Hasniyati Hamzah

Control of premise use:

Licensing for prescribed premises and Nuisance
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Introduction
• The way a building is used can impact the environment and
society.

• Therefore, the use of the building post construction (during

construction) is also subject to control.

CONTROL OF PREMISE
USE
License or permit for Nuisance under LGA
prescribed premise and SDBA
under EQA
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Licensing for prescribed
premises
Definition of Pollution 5

Section 2, EQA
– Any direct or indirect alteration of the physical,
thermal, chemical, or biological properties of any
part of the environment
– by discharging, emitting, or depositing
environmentally hazardous substances, pollutants or
wastes so as to affect any beneficial use adversely,
– to cause a condition which is hazardous or
potentially hazardous to public health, safety or
welfare, or to animals, birds, wildlife, fish or aquatic
life, or to plants; or
– to cause a contravention of any condition, limitation
or restriction to which a licence under this Act is
subject.
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Part III EQA: Licences

• The Director General of Environmental Quality is the
authority empowered to issue licenses for prescribed
premises (s10).
• The licence (s11)
– Can be issued with or without conditions.
– Can be revoked and conditions can be varied.
– Shall not contravene planning or land laws.
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Part III EQA: Licences (cont’d)

• The licence is valid for one year and is renewable

(s13), can be transferred (s14) and must be registered
(s15).
• Failure to obey licence conditions is an offence,
carrying a fine and/or imprisonment and a further fine
for every day the offence is continued (s16).
Part IV EQA: Prohibition and 8

control of pollution
• A prescribed premise, including vehicle or ship
used to manage waste, cannot be used or
occupied without a licence (Section 18).
• The Minister can control the emission, discharge or
deposit of pollutants by specifying the acceptable
conditions (Section 21).
• Sections 22 to 29 contains prohibitions for specific
types of pollutions.
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S22 Pollution of the atmosphere

• No person shall, unless licensed, emit or
discharge any environmentally hazardous
substances, pollutants or wastes into the
atmosphere in contravention of the acceptable
conditions specified under section 21.

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S23 Noise pollution

• No person shall, unless licensed, emit or cause
or permit to be any noise greater in volume,
intensity or quality in contravention of the
acceptable conditions under Section 21.

Source: DOE website

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S24 Soil pollution

• No person shall, unless licensed, pollute or
cause or permit to be polluted any soil or
surface of any land in contravention of the
acceptable conditions under Section 21.
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S25 Pollution of inland waters

• No person shall, unless licensed, emit,
discharge or deposit any environmentally
hazardous substances, pollutants or wastes into
any inland waters in contravention of the
acceptable conditions under Section 21.
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S27 Prohibition of discharge of oil

into Malaysian Waters
• No person shall, unless licensed, discharge or spill
any oil or mixture containing oil into Malaysian
waters in contravention of the acceptable
conditions specified under Section 21.
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S29 Prohibition of discharge of wastes
into Malaysian Waters
• No person shall, unless licensed, discharge
environmentally hazardous substances,
pollutants or wastes into Malaysian waters in
contravention of the acceptable conditions
specified under Section 21.

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S29A Prohibition of open burning

(1) Notwithstanding anything to the contrary
contained in this Act, no person shall allow or
cause open burning on any premises.
(2) Any person who contravenes subsection (1)
shall be guilty of an offence and shall be, on
conviction, be liable to a fine not exceeding five
hundred thousand ringgit or to imprisonment
for a term not exceeding five years or to both.

Source: DOE website 15

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Nuisance
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NUISANCE
• What is nuisance generally?
1. Disturbing conduct – there must be a volitional act.
2. Unreasonable and Substantial Interference.
• Is when an ordinary reasonable person suffers an
interference that [is] substantial and one that is
unreasonable under the circumstances.
3. Use and enjoyment
• The typical activities that are performed by
ordinary reasonable people that present any use to
the property.
• Balancing of interests between neighbours.

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Definition of Nuisance
Section 2 LGA
• any act, omission or thing
• occasioning or likely to occasion
• injury, annoyance, offence, harm, danger or damage
• to the sense of sight, smell or hearing or
• which is or is likely to be
• injurious or dangerous to health or property
• or which affects the safety or the rights of the inhabitants at large;

Section 3 SDBA
• any act, omission or thing occasioning or
• likely to occasion injury, annoyance, offence, harm, danger or
• damage to the sense of sight, smell or hearing, or which is or is
• likely to be injurious or dangerous to health or property.
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Examples of nuisance
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Types of nuisance
• Nuisance can be divided into private nuisance and
public nuisance.
• Private nuisance is settled under torts, while public
nuisance is settled using legislation as it affects
public interest.
• In Malaysia, it is the duty of the local authority to
eliminate nuisance within its area.
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Public nuisance
• An interference with public rights.
• Nuisance would only be created if, knowing or having
the means of knowing of its existence, a person allows it
to continue for an unreasonable time or in
unreasonable circumstances.
• Other public interests protected include: public comfort,
safety and health.
• The cases Attorney-General v PYA Quarries Ltd [1957]
and Majlis Perbandaran Pulau Pinang v Boey Siew
Than & Ors [1978] established that public nuisance
arises when an act materially affect the reasonable
comfort and convenience of life of a class of the
society.
– Number of persons required to constitute “a class of the
subject of the State” is a question of fact. 21
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• Therefore, it is necessary to remove and prevent

nuisance in society.
• The responsibility to remove and prevent public
nuisance lies with the Local Authority per the Local
Government Act 1976 (Act 171) and SDBA 1974 (Act
133).
• Examples of commonly found public nuisance within
local authority area are abandoned premises and
bushes.

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Example of public nuisance

• Bushes

Sec.75 empowers LA officer to enter and cleanse

houses or buildings
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Nuisance abatement under LGA
• LA’s duty and power regarding nuisance abatement are stated in Part
IX of LGA (Food, Markets, Sanitation and Nuisances).
• Section 72(1)(iii) LGA: LA is given power to prevent or remedy
any nuisance.
• Section 73(1)(iii) LGA: LA can make, amend or revoke by-laws in
their effort to prohibit, remove, abate and prevent the occurrence
of nuisances.
• Section 80 LGA: LA has the duty to stop nuisance within the LA
area and can take legal action against persons who cause
nuisance.
• Section 81 LGA outlines types of public nuisance that LGA is
empowered to eliminate including premises that cause nuisance,
keeping of animals, accumulation or deposit, overcrowded factory,
huts or sheds with poor drainage, polluted body of water, chimney
that send off copius amount of smoke, dangerous dust or effluvia
caused by trade, business, manufacture or process.

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LA powers to eliminate nuisance dwelling

• Section 74 LGA: Dwelling that is filthy or overgrown with vegetation.
• Section 75 LGA: LA can enter and cleanse houses.
• Section 77 LGA: LA can close, alter or demolish unsanitary building or
part of building.
• Section 78 LGA: Overcrowding a house is an offence if it causes injury or
danger to the health of the occupants.
• Overcrowding=Being inhabited more than 1 person per 350 cubic feet.
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Buildings constituting Nuisance

Section 86 SDBA
• Building or part of building which are a nuisance, unsafe
or unhealthy.
• Water and waste system e.g. pool, gutter, water-course,
water-closet, etc. which are a nuisance, unsafe or
unhealthy.
• Building that is dirty, has poor drainage or has poor
ventilation which are a nuisance, unsafe or unhealthy.
• Huts or sheds for dwelling, stables or any other use that
lacks drainage or cause nuisance, are unsafe or unhealthy.
• Excavation sites which are unsafe, unsuitable to the
neighbourhood or unhealthy.

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Procedure under Section 82 LGA and Section 87 SDBA to 27

eliminate nuisance
Receive complaint from public

NOTICE (FORM B)
LA will issue a Form B notice to the person who caused the nuisance. The
notice is for abatement of nuisance and prevent recurrance of the nuisance. If
the person who caused nuisance cannot be traced, LA can abate the nuisance
and claim the costs from the owner.

NUISANCE ORDER BY MAGISTRATE COURT

LA may make an application from the Magistrate Court for the following:
• Abatement order (FORM C) requires a person to abate nuisance within
a timeframe and states the works that needs to be done for that
purpose.
• Closing order (FORM D) prohibits a dwelling house from being used as
human habitation. Closing order must be conveyed to all occupants of
the house. With police assistance, LA can evict the occupants who do
not comply with the closing order.

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Section 83 LGA and Section 89 SDBA: Demolition

order
• If the closure order for a house has been executed
and LA is of opinion that it is still dangerous or cause
harm to the health of public or neighbours, LA can
apply to the Magistrate Court to issue a demolition
order on the house.
• The demolition must be done by the house owner. In
the case of non-compliance, LA can undertake
demolition and recover costs from the owner.

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THANK YOU

Next week: Heritage building conservation