Can Your Neighbour Be Liable for Earthworks That Damage Your Land? Malaysian High Court Awards RM3.02 Million Repair Costs and RM5,000 Per Day
Property owners often assume that they are free to carry out excavation, construction and earthworks within their own land.
However, ownership of land does not necessarily give a person an unrestricted right to use the land in a way that damages neighbouring property.
A recent Malaysian High Court decision illustrates how serious the consequences can become when earthworks on one property interfere with the neighbouring owner’s land.
In Broga Hill Resort Sdn Bhd v O & G FIC (M) Sdn Bhd [2026] CLJU 1749, the High Court at Seremban dealt with a dispute involving excavation works, slope cutting, trespass, private nuisance and the neighbouring landowner’s right to natural support.
The Court ultimately allowed the Plaintiff’s claim, including approximately RM3.02 million in rectification costs and RM5,000 per day in general damages for continuing trespass and private nuisance.
The case provides an important guide for landowners, developers, contractors and businesses undertaking construction or earthworks close to neighbouring properties.
What Happened in Broga Hill Resort v O & G FIC?
The Plaintiff and Defendant were companies owning adjoining pieces of land in Lenggeng, Seremban, Negeri Sembilan.
The Plaintiff owned Lot 3017, while the Defendant owned the neighbouring Lot 3016.
The Defendant carried out earthworks and excavation in connection with the construction of a road on its property.
According to the Plaintiff, those works included uncontrolled or unplanned slope cutting, excavation and earthworks close to the boundary between the two properties.
The Plaintiff alleged that the works affected not merely the Defendant’s land but also the Plaintiff’s property and the land around the boundary.
The Plaintiff further alleged that the works weakened or compromised the natural support of its land and created a risk of serious soil erosion and slope failure.
The dispute eventually resulted in proceedings being commenced against the Defendant for, among other things:
- trespass to land;
- private nuisance;
- interference with the Plaintiff’s right to natural support;
- rectification costs;
- general damages; and
- continuing damages for the alleged trespass and nuisance.
The Plaintiff Claimed More Than RM3 Million in Repair Costs
One of the most substantial parts of the claim concerned the cost of repairing and stabilising the affected land.
The Plaintiff claimed RM3,020,850 as the estimated cost of rectification works.
The proposed works included various retaining walls intended to stabilise the slope and prevent further deterioration.
The Plaintiff also sought RM5,000 per day for every day that the trespass and private nuisance continued.
This made the case particularly significant.
It was not simply a dispute about a small portion of neighbouring land.
The alleged encroachment had potentially created a much larger engineering problem involving slope stability, erosion and expensive remedial works.
What Was the Defendant’s Position?
The Defendant denied the Plaintiff’s claim.
Among other things, it argued that:
- the claim was time-barred;
- the Defendant had carried out construction works on its own property;
- the works had been carried out lawfully and reasonably; and
- any damage or instability affecting the Plaintiff’s land resulted from the Plaintiff’s own failure to manage its property properly.
After hearing the evidence, however, the High Court found in favour of the Plaintiff.
Can You Trespass Even If You Believe You Are Working on Your Own Land?
An important part of the judgment concerns the law of trespass.
Trespass to land generally involves direct and unlawful interference with land that is in another person’s possession.
The Court referred to earlier Malaysian authorities explaining that trespass may occur where someone wrongfully enters or interferes with another person’s land without legal right or permission.
More importantly, trespass to land is generally described as actionable per se.
In simple terms, this means that a landowner does not necessarily have to prove actual financial loss before establishing that a trespass has occurred.
The High Court referred to authority stating that even an intrusion made under a mistaken belief as to ownership may still amount to trespass if the relevant entry or interference was intentional.
This is an important practical point for landowners and contractors.
Saying:
“I thought this was still my land”
may not necessarily provide a complete defence if works have actually crossed the legal boundary.
Boundary verification before excavation or construction can therefore be extremely important.
Malaysian Landowners Have a Right to Natural Support
The case also highlights a less commonly understood property right: the right of land in its natural state to receive support from adjoining land.
Section 44(1)(b) of the National Land Code recognises the right to support of land in its natural state by adjacent land.
The High Court considered this statutory right in deciding the dispute.
The Court held that because the Plaintiff’s and Defendant’s properties were adjoining lands, the Plaintiff enjoyed a right of natural support from the neighbouring property.
Accordingly, when carrying out earthworks and road construction on its property, the Defendant had a responsibility not to interfere with that support.
This principle is especially relevant to:
- hillside developments;
- slope cutting;
- excavation works;
- retaining wall construction;
- basement excavation;
- road construction;
- quarrying activities; and
- developments close to property boundaries.
A landowner may have the right to develop his own property, but that right exists together with the rights enjoyed by neighbouring landowners.
What Evidence Convinced the Court?
Property disputes involving earthworks can be difficult because the affected owner may not personally witness the excavation taking place.
In Broga Hill Resort, the Court considered several categories of evidence.
These included evidence from the Defendant’s own director confirming that contractors had been appointed to carry out earthworks and construct a road.
Evidence was also given that excavators had been used near the boundary before a fence was erected between the properties.
The Court also considered photographs and expert evidence.
The Defendant’s witness agreed that both lots had been cleared of vegetation before the fence was constructed.
The Plaintiff’s geotechnical expert explained that, because of the proximity of the proposed road to the slope and boundary, slope cutting would have been necessary.
The expert evidence was that the slope formation was man-made rather than naturally occurring.
The Court ultimately found that the Defendant’s earthworks and excavation had encroached onto the Plaintiff’s land.
Significantly, part of the evidence supporting the Plaintiff’s case came from admissions made by the Defendant’s own witness.
Do You Need an Eyewitness to Prove Trespass?
Not necessarily.
The judgment discussed an earlier case in which the Court recognised that a civil claim may be established through inference even where the Plaintiff did not personally witness the Defendant carrying out the offending excavation.
This reflects an important feature of civil litigation.
The standard of proof in a civil case is generally the balance of probabilities.
The question is therefore not necessarily whether there is direct eyewitness evidence of every event.
The Court may consider the totality of the evidence and determine what probably occurred.
In this case, physical evidence, photographs, the location of the works, witness testimony and expert evidence were relevant to the Court’s findings.
Why Was the Trespass Considered Continuing?
Another important question was whether the trespass had ended once the Defendant completed its road construction.
The High Court found that the effects of the encroachment remained.
The Plaintiff’s geotechnical expert visited the site in January 2025 and observed signs of erosion, including drainage holes or erosion features on the exposed slope.
The expert explained that the exposed slope remained vulnerable to rainwater and continuing erosion.
The evidence was that the condition could progressively worsen and could ultimately affect the stability of the slope if proper rectification was not undertaken.
The expert’s earlier geotechnical reports were also considered together with the later site inspection.
The Court accepted evidence that damage associated with the exposed slopes was continuing.
This distinction is important.
A construction activity itself may have stopped years earlier, but the legal consequences may potentially continue if the resulting interference with another person’s property remains unrectified.
Why Did the Court Allow RM3,020,850 in Rectification Costs?
The Court found that the excavation had removed or displaced earth and created steep vertical cuts along the boundary, thereby interfering with the Plaintiff’s right to support.
The Plaintiff’s land had consequently suffered damage requiring rectification works.
The Court treated the future expenses necessary to repair the property as a foreseeable consequence of the Defendant’s acts.
Evidence was produced concerning the construction of several forms of retaining wall.
A contractor estimated the cost of the proposed rectification works at RM3,020,850.
The geotechnical evidence supported the need for retaining walls to stabilise the affected slope and address continuing erosion.
The High Court therefore allowed the Plaintiff to recover the full proposed rectification cost of RM3,020,850.
RM5,000 Per Day for Continuing Trespass and Private Nuisance
Perhaps the most striking part of the judgment was the Court’s treatment of continuing damages.
The High Court allowed RM5,000 per day for each day that the trespass and private nuisance continued.
The Court found that the land remained affected by erosion even after the Defendant had completed construction of the road.
Accordingly, the Court treated the trespass and nuisance as continuing.
The Court ultimately allowed the RM5,000 daily amount to run from the Plaintiff’s lawyer’s letter of demand dated 18 October 2016 until the Defendant rectified the trespass and nuisance.
This demonstrates how significant continuing property disputes can become.
Where the underlying problem remains unrectified, potential liability may extend far beyond the original cost or value of the portion of land affected.
Why a Letter of Demand Can Become Important
Another practical feature of this case is the significance of the letter of demand.
The Plaintiff’s previous solicitors had issued a demand in October 2016 concerning the damage to the property.
According to the judgment, the Defendant did not subsequently take steps to rectify the damage complained of.
The High Court eventually used the date of the letter of demand, 18 October 2016, as the commencement date for the RM5,000-per-day continuing damages award.
This shows why correspondence before litigation can become important evidence.
A properly drafted demand may establish, among other matters:
- when the opposing party was formally notified of the problem;
- what defects or interference were complained about;
- what rectification was requested;
- whether the opposing party was given an opportunity to rectify the problem; and
- whether the alleged wrongful conduct continued after notice was given.
Property owners facing continuing encroachment or nuisance should therefore consider preserving all correspondence carefully.
What Is Private Nuisance?
Private nuisance generally concerns unreasonable interference with a person’s use or enjoyment of land.
It differs from trespass.
Trespass commonly focuses on direct physical interference or intrusion onto another person’s land.
Private nuisance can concern interference with the use or enjoyment of the property even where the facts do not necessarily involve a person physically entering the land.
In Broga Hill Resort, the Plaintiff relied on both trespass and private nuisance arising from the neighbouring earthworks and their continuing effects.
The Plaintiff alleged that the Defendant’s works interfered with its peaceful enjoyment of its land and compromised the natural support provided by the adjoining property.
Can a Neighbour Develop His Own Land However He Wants?
No.
A landowner certainly has substantial rights over his own property.
However, those rights are subject to the rights of neighbouring owners and applicable laws.
The case demonstrates that a property owner undertaking construction or earthworks should consider whether the proposed works may:
- cross the legal boundary;
- remove soil supporting neighbouring land;
- destabilise an adjoining slope;
- cause continuing erosion;
- interfere with neighbouring property;
- constitute trespass;
- constitute private nuisance; or
- create a foreseeable need for expensive rectification works.
The fact that construction physically takes place mainly on one’s own land does not necessarily end the legal analysis.
The effects of those works on neighbouring land can also become legally significant.
The Importance of Expert Evidence in Land and Slope Disputes
Another lesson from the case is the importance of technical evidence.
Slope failure, soil erosion and land support disputes frequently involve issues that cannot be satisfactorily determined merely from photographs or ordinary witness testimony.
A geotechnical expert may be required to explain:
- whether a slope is naturally formed or man-made;
- whether excavation affected the neighbouring land;
- whether the slope remains stable;
- whether erosion is continuing;
- whether retaining structures are necessary;
- what remedial works are appropriate; and
- whether the claimed damage is consistent with the construction activities complained of.
In this case, the Plaintiff’s geotechnical expert played an important role in explaining the continuing erosion and the need for remedial retaining structures.
What Should Property Owners Do If Neighbouring Earthworks Are Affecting Their Land?
Where significant excavation or construction is occurring beside a property, early action can be important.
A property owner may consider:
- Taking dated photographs and videos before, during and after the neighbouring works.
- Obtaining the relevant land title and survey information.
- Identifying the precise legal boundary.
- Recording visible cracks, erosion, slope movement or drainage changes.
- Engaging a surveyor, engineer or geotechnical expert where appropriate.
- Keeping correspondence with the neighbour, contractor and relevant authorities.
- Issuing a formal letter of demand where legal intervention becomes necessary.
- Considering whether urgent injunctive relief may be required before further damage occurs.
Allowing potentially damaging work to continue without preserving evidence can make a later claim considerably more difficult.
What Should Developers and Contractors Do Before Carrying Out Earthworks?
The decision is equally relevant to developers and property owners undertaking construction.
Before excavation close to a boundary, appropriate precautions may include:
- confirming boundary positions through proper survey work;
- carrying out geotechnical assessments;
- considering slope stability;
- designing appropriate retaining structures;
- implementing drainage and erosion-control measures;
- keeping proper construction records;
- monitoring neighbouring land; and
- responding promptly to complaints about possible encroachment or instability.
The cost of proper precautions may be substantially lower than the cost of later rectification proceedings.
The High Court’s Final Decision
The High Court found, on the balance of probabilities, that the Plaintiff had proven its claim against the Defendant.
The Court allowed the Plaintiff’s claim as set out in its amended statement of claim and awarded costs of RM30,000.
The judgment records that the Defendant filed a Notice of Appeal dated 5 March 2026 appealing against the High Court’s decision.
Accordingly, this case should be understood as the High Court’s decision and reasoning, rather than as a statement that every issue has necessarily reached final appellate determination.
Key Takeaways from Broga Hill Resort v O & G FIC
The case illustrates several important principles for Malaysian property owners.
First, a landowner’s right to use his own property is not unlimited where that use damages neighbouring land.
Second, neighbouring landowners enjoy a recognised right to the natural support of their land.
Third, trespass may be actionable even without proof of actual loss.
Fourth, direct eyewitness evidence is not always required. A civil claim may be established through the overall evidence and reasonable inferences drawn from proven facts.
Fifth, technical and expert evidence can be crucial in disputes involving slopes, excavation and soil stability.
Sixth, where the consequences of an encroachment remain unrectified, the dispute may potentially be treated as continuing.
Finally, the financial consequences can be substantial.
In this particular case, the High Court allowed approximately RM3.02 million in rectification costs together with RM5,000 per day for continuing trespass and private nuisance.
For property owners, developers and contractors, the broader lesson is straightforward:
A boundary dispute involving only a small area of land can eventually become a multimillion-ringgit dispute if the works compromise the structural stability of neighbouring property.
Frequently Asked Questions
Can I sue my neighbour for damaging my land in Malaysia?
Depending on the circumstances, potential causes of action may include trespass, private nuisance, negligence and interference with rights associated with the ownership of land. The appropriate claim will depend on how the damage occurred and the available evidence.
Can my neighbour excavate close to my boundary?
Owning adjoining land does not necessarily permit excavation that encroaches onto your property, removes its natural support or causes actionable damage.
Must I prove financial loss to sue for trespass?
Trespass to land is generally actionable per se, meaning proof of actual damage is not necessarily required to establish the cause of action. However, proof of actual loss will usually be important where substantial damages are claimed.
Can I claim the cost of a retaining wall?
Potentially, if the retaining wall or other remedial work is reasonably required to rectify damage legally caused by the adjoining owner. In Broga Hill Resort, the High Court allowed the claimed rectification costs based on the evidence presented.
What evidence is useful in an earthworks dispute?
Relevant evidence may include photographs, videos, survey plans, land titles, correspondence, engineering reports, geotechnical reports, contractor records and witness testimony.
Can damages continue to accumulate after construction has stopped?
Potentially. Broga Hill Resort illustrates a situation where the High Court considered the trespass and private nuisance to be continuing because the physical condition affecting the Plaintiff’s land remained unrectified.
Conclusion
Broga Hill Resort Sdn Bhd v O & G FIC (M) Sdn Bhd [2026] CLJU 1749 is a useful illustration of how Malaysian property law deals with neighbouring earthworks, trespass, private nuisance and the right of natural support.
The case shows that land development should never be considered solely from the perspective of the land being developed.
Where excavation or slope works affect adjoining property, the resulting liability may include not only damages for the encroachment itself but also substantial engineering and rectification costs.
Where landowners discover excavation, slope cutting, erosion or construction affecting their property, preserving evidence and obtaining appropriate technical and legal advice at an early stage may be critical.
Written on: 24th September 2026, Thursday
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