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Action better
than talk
23/12/08 NST 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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