To’ Puan Nur owns a bungalow within the vicinity of Sultan Mahmud Airport in Terengganu.

When she bought the house in 1985, the airport was still a small airport with only a few flights
coming in. Since 2010 however, the airport was expanded and more airplanes started flying
over her bungalow. One late evening in November 2012, To’ Puan saw a light aircraft flying
very low over her bungalow. It was a particularly windy day due to the monsoon season. To’
Puan is worried and wishes to sue the airplane company for trespass. She also wishes to claim
for an injunction to stop the company from using her airspace as a flight path for their airplanes.

i) Advise To’ Puan on the prospects of succeeding in the action.

ii) Would your answer be different if suddenly, a portion of the wing of the aircraft fell
on the roof of To’ Puan’s bungalow causing damage to the bungalow and the aircraft eventually
crashed onto the adjoining vacant land?

i)

Whether or not To’ Puan could sue the airplane company for trespassing her land by
flying very low over her bungalow and whether or not To’ Puan could claim for an injunction
to stop the company from using her airspace as a flight path for their airplanes?

The right of airspace has their own restrictions. The first one it must be subject to any
other written law. As stated in Section 19(1) of Civil Aviation Act 1969 that explain about
there will be no action will lie in trespass or nuisance but with the reason only of the flight of
aircraft over any property at a height above the ground and which having regard to wind,
whether and all circumstances of the case that is reasonable. There is no such thing as exclusive
right regarding in enjoyment of the land. However, you have the right to exclude person to
enter in land or the trespass. The right is not absolute, you as the owner of the land but you still
need to pay for the Quit rent and assessment rent. There always a limitation and that includes
limitation in enjoy the land. The second restriction is that there will be the need of balance in
private rights with the public rights as well. The airspace must be as is reasonable for lawful
use and enjoyment. In order to balance the public and private rights is that by restricting the
right of an owner in the airspace above his land to such height as is necessary for the ordinary
use and enjoyment of his land and the structures upon it, and declaring that above height, he
has no greater rights in the airspace than any other member of the public.
 In the case of Swetland v Curtis Airport, the swetland family owned a piece of land
measuring 135 acres in Ohia. And in 1929, a corporation purchased an area of 272 acres
adjacent to Swetland’s land. The corporaton’s objectives were to establish an airport, a flying
school and large a car park. Continue, Swetland sent a notice of protest to the Corporation
stating that project will disturb their future residential purposes plan. And the Corporation went
ahead and ignored the protest. It was held by the district court that the plaintiff succeeded in
obtaining restraining order preventing the defendants to 3 things. First one is that permit dust
to fly or drift in substantial and annoying quantities onto the plaintiff’s land. Second, dropping
or distributing circulars or leaflets from aeroplane. And third, flying in less than 500 altitude.
However, in claiming for injunction in to use the land as airport is rejected. The Court of Appeal
judgement is that they cannot fix definite and unvarying below which the surface owner may
reasonably expect to occupy the air space for himself. And the height will be determined upon
to the particular facts of the case.

Regarding to the above case, the airplane was flying very low over the To’ Puan
bungalow because of the bad weather during that time. Hence, here it is unreasonable for her
to sue the Airport in trespassing her land based on that reason. As mentioned above, we need
to have balance the private and public rights. It is beyond the airport control on the bad weather
situation. To’ Puan can’t be thinking that her right in enjoyment her land is absolute. She has
a limited right in the airspace above her property. However, To’ Puan can argue about her
safety regarding to that particular situation she has been facing through by the conduct of the
airport. This is also, applying to the injunction she wishing to claim in stopping the land use
for the airport. That will be an abuse of her own right in enjoyment of her land. If she be doing
that there will be imbalance between the public rights and private rights. This could be seen in
the relevancy case had been mentioned about. The swetland case has shown that the plaintiff
could ask for some restrictions. Hence, instead of sue and injunction To’ Puan could ask some
restrictions that are reasonable and relating to her safety over the property and not prejudicing
her private rights. That way, it will all based on court discretionary whether the restrictions is
sufficient or not.

In conclusion, To’ Puan could not sue the airplane company by flying very low over
her bungalow because things that happened is due to the Monsoon weather and To’ Puan could
not claiming for the injunction in stopping the company from using the land for airport that
way will be making the private rights and public rights imbalance.

ii)

Yes, my answer will be different if that particular thins happened to the property To
Puan. Regarding to Section 19(1) Civil Aviation Act 1969. It says that if any material damage
or loss that cause by the airplane in flight, taking off or landing or by any person in any aircraft
or by any article that falling from any such aircraft. That falls to any person or property on the
land or water. Hence, the damages shall be recoverable from the owner of the aircraft in respect
of such damages or loss. And it could without proof of negligence or intention or other cause
of action. So here, To’ Puan may sue the plane that causing such material damage to her
property. In the case of Woolerton and Wilson Ltd v Richard Costain. The plaintiff’s airspace
had been oversailed by the jib of Constain’s tower crane, but the plaintiff refused to grant
licence despites Constain offering a substantial amount of cash. The claimant had not suffered
damage as a result of the trespass. The plaintiff obtained an injunction but significantly the
court decided tht in appropriate cases, it would use its discretion to suspend until Constain’s
works were complete.