Tuesday, December 23, 2008

Action better than talk

Property Times, New Straits Times
By Ivy Chang

It has been a fortnight since the devastating Bukit Antarabangsa landslide in Ampang, Kuala Lumpur, on Dec 6.

Pending investigations into the incident, certain quarters have claimed that the disaster was an act of God, others alleged it was due to an abandoned housing project, and still others asserted the cause of the landslide is purely the negligence of maintenance.

Bukit Antarabangsa residents have announced they are planning to sue and claim compensation.

Lawyers said that will be an uphill task for the claimants.

House Buyers Association secretary- general Chang Kim Loong, noting the high emotions and a lot of anger in the air at present, urged all parties to "stop the blame game" as "it's premature until the results of whatever findings, which should then be made public for the people to judge".

"The focus now should be on remedial measures to strengthen the slope, seek alternative accommodation for those affected, ensure safety to the existing neighbouring houses and call a moratorium on all hillside developments until the respective local councils are able to review and audit their respective geotechnical report, environment impact assessment report and soil treatment report by the experts," Chang said.

"Don't let the anger get the best of us. The affected owners should not be provoked to sue the related parties until the findings are made known. Suing should always be the last resort," he advised.

In the meantime, the legal fraternity opined that the claimants would have to overcome several hurdles, not least the immunity under section 95(2) of the Street, Drainage and Building Act 1974 (the Act).

The Federal Court unanimously decided on Feb 17, 2006 that the local government council was legally protected against legal action even though they were found to be negligent and partly responsible for the collapse of the Highland Towers on Dec 11, 1993 after a landslide in which 48 people were killed and another 73 affected when the two remaining blocks were later found to be unsafe and condemned.

On residents affected by the Dec 6 incident, lawyer Derek Fernandez advised they can file a negligence case against the local authority provided they can prove that the local authority had been derelict in its duties and had failed to act on the residents' complaints.

The 2006 Federal Court decision, he said, only applied in relation to earthworks and planning approvals.

He said claimants should bring their action outside the Act by arguing that the local authority did not act in good faith while carrying out its duties.

"Evidence of bad faith would be where the local authority wilfully disregarded guidelines, rules and regulations in relation to hillslope development. Furthermore, if dangers were pointed out to them and they did nothing then the immunity cannot apply," he explained.

Fernandez said residents may also have a cause of action against the local authority under nuisance or under the Local Government Act or the Town and Country Planning Act under which there is no similar statutory immunity.

He disclosed that in a 2005 unreported case, Abdul Ghapoor and 82 others successfully sued Majlis Perbandaran Petaling Jaya for improper planning permission and were granted damages.

He reiterated that if the local authority had specific knowledge of the dangers and did nothing to rectify them, then the immunity would not apply.

Meanwhile, the Ampang Jaya Municipal Council refuted claims that it had failed to respond positively to complaints by residents in Bukit Antarabangsa on numerous issues ranging from soil erosion to tree pruning in the area a few days before the tragedy.

Fernandez said residents could seek compensation for loss of use of home, rebuilding of homes, dependency claims, relocation expenses and loss of personal properties, but he cautioned that the residents should ascertain the cause of the tragedy before embarking on a legal suit.

Another lawyer, Roger Tan, also opined it would be difficult for residents to sue the local authority as it enjoyed immunity under Section 95 of the Act.

However, he said it was against public interest to insulate local authorities from any suit if they failed in their statutory duties.

Both Tan and Fernandez are part of the task force set up by the Bar Council to monitor hillslope developments.

Tan and Bar Council president Datuk Ambiga Sreenevasan have both urged for the repeal of the statutory immunity.

Meanwhile, Pahang, Penang and Perak have stopped highland developments following the Bukit Antarabangsa landslide. The state governments said the guidelines on hillslope developments will be stepped up.

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