|
Hill-Slope Disasters (Part II)
11/08/2006 The Sun - Law & Realty By Derek Fernandez
Lack of law or lack of will?
On June 22, 2002, the Ministry of Science, Technology and Environment issued
strict and detailed guidelines to all State Governments and Federal Agencies
in connection with hill slope development, known as "the Garis Panduan
Pembangunan di Kawasan Tanah Tinggi (GPPDKTT)".
As mentioned in Part 1 of this article, all developers are already required
to comply with “Garis Panduan Pembangunan Di Kawasan Bukit” (GPPDKB) issued
by the Ministry of Housing and Local Government. The GPPDKTT prohibits any
development in an area with a gradient of above 35 degrees (measured on
existing contours and not after cutting and filling). In respect of areas
with gradients between 26 and 35 degrees, development may be considered, but
is subject to detailed studies and evaluation.
Under the GPPDKTT, the developer is required to submit the following
reports:-
(i) an“Environment Impact Assessment” (EIA) report prepared in accordance
with the guidelines set out by the Department of Environment;
(ii) a geological and geo-technical report;
(iii) a risk erosion map, outlining the risks of erosion that may take
place;
(iv) a proposal on the stabilisation measures to be taken by the developer,
to minimize the risk of erosion, landslide and destabilisation of the
surrounding area; and
(v) a detailed EIA is further required if the proposed development is on an
area with a gradient of between 26 and 35 degrees, and which constitutes
more than 50% of the development area.
For areas with gradients of less than 26 degrees, developers are required to
comply with the GPPDKB and the Garis Panduan Kawalan Hakisan dan Kelodakan,
1996. Further, the requirement for an EIA report is not limited to the size
of the land, as these guidelines make it clear that mixed gradients with
Class 3 slopes (26 to 35 degrees) and Class 4 slopes (over 35 degrees)
require a full EIA report.
It accords with good wisdom that only professionals ought to prepare
Environmental Impact Assessment reports. They must ensure reasonable care in
the preparation of their professional opinions and be prepared to bear
responsibility for the consequences resultant upon reliance on their
expertise. A local authority can only consider whether to issue a
development order, after it has received all these reports.
When planning approval is granted, the developer's building plans are
supposed to be scrutinised for approval under the provisions of the Street,
Drainage and Building Act 1974 ("SDBA"). However, the Federal Court in
Majlis Perbandaran Ampang Jaya v. Steven Phoa Cheng Loon & 81 Others (the
Highland Tower case), ruled that a local authority cannot be held liable
under the SDBA, if the act carried out under the provisions of the SDBA was
done in good faith.
This is due to the immunity conferred upon the local authority by Section 95
of the SDBA. Nevertheless, the writer is of the view that bad faith may be
implied, if clear guidelines and policies are disregarded when approving
building plans or when issuing orders to carry out remedial work. In
addition, in areas which are known to be prone to landslides, bad faith may
also be implied if the local authority disregards basic measures or pays
little attention to the risk assessment of erosion, in respect of which a
developer would have submitted to the local authority a risk erosion map and
appropriate mitigation measures.
In most situations, a 2-stage development order is the only prudent approach
to a hill-slope development, that is to say, no development is to be allowed
until there is strict compliance with all the measures taken to protect
against soil erosion and for ensuring hill-slope stabilisation.
While there has been a tremendous public outcry on the immunity granted to a
local authority which was highlighted in the Highland Tower case, it is
pertinent to note that such immunity is not conferred upon a local authority
by the Town & Country Planning Act 1976 ("TPCA"). In such cases, the local
authority concerned may be sued for damages for the resultant loss suffered,
or its administrative order for an illegal or improper planning approval can
be the subject of a judicial review.
In Abdul Ghapoor & 85 Others v. Majlis Perbandaran Petaling Jaya for
instance, the High Court held that a planning order was not legal and
ordered the local authority to compensate the plaintiffs, namely the
aggrieved residents, who were detrimentally affected by the illegal planning
order. Several other decisions of various courts have supported this just
and equitable principle of law.
In general, under the law of tort, relief and remedy will be available to a
person who suffers loss as a result of the unlawful conduct of a developer.
However, this may be of little consolation, if at all, where there has been
a loss of life. Prevention, as the old adage goes, is better than cure.
Suffice it to say, if all the prerequisite reports and documents mentioned
above are prepared, and the guidelines and laws referred to above, are
complied with, there will be a very low risk of a disaster occurring.
To lower the risk of disaster the minimum area requirement for an EIA report
under the Environment Quality Act 1974, ought to be amended. Alternatively,
the National Physical Council ought to make necessary rules on the minimum
area requirement, under Section 58 of the TCPA. These rules will be useful
as they override rules made by any State Authority under the TCPA in any
matter relating to hill-slope development.
Meanwhile, it would be prudent for a prospective purchaser of a hill-side
property to:-
- Get to know your developer;
- Ask for the Approved Layout Plan;
- Ask for a copy of the Development Order and Impact Report;
- Check if plans follow guidelines;
- Double-check with the Local Council;
- Ensure that insurance is available;
- Determine that mitigating measures are implemented beforehand;
- Agree to buy the property subject to developer’s confirmation of
mitigating measures having been taken;
- Monitor the progress of the development; and
- Ask for professional help;
Whenever there is proposal for a new development in the vicinity of your
hill-slope property, you should:
- Peruse the development proposal;
- Not hesitate to make complaints official in the event of any irregularity;
- Demand enforcement and transparency; and
- Mobilise your Residents Associations and approach your Member of
Parliament for assistance, where necessary.
Unless there is a genuine effort on every one's part to apply the available
laws, guidelines and policies, without fear or favour, there will certainly
be more disasters, more loss of life and more excuses. History, since time
immemorial, has a habit of repeating itself.
The writer is a member of the Conveyancing Practice Committee
Bar Council Malaysia
www.malaysianbar.org.my |
