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©The Sun (Used by permission)
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

Note: This column is brought to you by the Malaysian Bar Council for your information only. It does not constitute legal advice. You should therefore seek professional legal advice for your specific needs. Neither the Malaysian Bar nor the Sun Media Corporation Sdn Bhd shall be liable to any reader who suffers losses as a result of relying on this column.

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