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by Siti Nur Fazlin Mohd Pauzi

Section 5 of the National Land Code 1965 provides the meaning of land which is the surface of the earth and all substances forming that surface, the earth below the surface and all substances within, all vegetation and other natural products, whether needs labour or natural, all things attached to the earth or permanently fastened to anything attached to the earth, whether on or below the surface and land covered by water.

The rights to one’s property as enumerated in Article 13 (1) of the Federal Constitution mentions that no man can be deprived of their rights over their property except as provided under the law. In this article, we will explore what constitutes trespass to land and touches the issue of drone operations.

Trespass to land occurs when a person intentionally enters someone’s else property without permission or remains upon the land or causes unreasonable interference with a person’s ownership or possession of the land. This wrongful conduct is actionable per se, and the claimant does not have to prove that he has suffered loss or damage in order to take the case to the Court.

In Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358, the trespasser is described as a person “who goes on the land without an invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.” Subsequently, the only person who can claim trespass to land is the one who has possession of the land. It is worth noting that to give rise to a cause of action in trespass to land, it must be shown that the claimant possesses the property, and not merely ownership.

In Segar Restu (M) Sdn Bhd V Wong Kai Chuan & Anor [1994] MLJU 428, Plaintiff brought an action against Defendant for trespassing their land by unlawfully erecting a bungalow, a factory and planting durian trees on the land belonged to the Plaintiff. The Court held that Plaintiff is entitled to the summary judgment application where the case is clearly undisputed as Defendant had no excuse for their actions of trespassing the land and causing great loss to Plaintiff.

However, the next question is whether the same rules are applicable to drones or private unmanned aircraft systems (UAS). A drone is an unmanned aircraft that can fly remotely with a controller. In Malaysia, flying a drone is legal subject to the regulations provided by the Civil Aviation Authority of Malaysia (CAAM). A drone operating permit is also needed to be obtained from CAAM. So, can a person claim for trespassing on land caused by drone operations?

According to the Latin maxim, “Ciuc est solum, eius est usque ad coelom et ad inferos” means that the owner of the land owns everything up to the heaven and hell to describe the extent of private property underground and in the sky. The regulatory framework of drone operations and trespass to land is still under development. Nevertheless, to shed the light on this matter, in Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479, Plaintiff alleged that the Defendants wrongfully entered the airspace above his premise to take aerial photographs of the property. Nevertheless, the Court decides that a property owner does not have unqualified rights over the airspace above their land thus Defendants did not infringe the rights of Plaintiff based on the fact that the right of the landowner only extends to the height required for the ordinary use and enjoyment of his land.

A similar verdict is also laid down in United States v. Causby, 328 U.S. 256 (1946), the aircraft that caused the Causby’s chickens to die of fright by flying low has caused great loss to the Causby, thus the Court determined that the government has violated Causby’s rights. The Court also highlights that the flight should have flown above airspace with a minimum safe altitude of flight which is known as a public highway and part of the public domain.

Therefore, the limitations for determining the extent of private airspace must be fixed as it also applies to drone operations. Fortunately, the parameters are stated in CAAM regulations where the drone’s flights are allowed within visual range, within 150 meters of designated places, over crowds of more than 1000 persons in open spaces and above 150 meters over the said crowd. Thus, the drone pilots have the duty to observe the regulations and stay away from prohibited areas that may cause trespassing to land.

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