A legal case for TAED

Austral Park house owners' case dismissed

Published on: Friday, January 23, 2015  Daily Express

Kota Kinabalu: The High Court has rejected the application by Austral Park house owners for injunctive relief against the construction of the 500 units of People's Housing Project (PPR) in the area.
Judge Stephen Chung on Thursday ruled in favour of the defendant – Sabah Housing and Town Development Authority (LPPB) - and dismissed with costs the plaintiffs' application ruling that there were no merits in the application.
The plaintiffs were Sarjit Singh @ Ramday and nine others.
The plaintiffs' case against the defendant was in relation to four parcels of land, the Open Space and Sports and Recreation Reserve, where they alleged that the Open Space and Sports Recreation Reserve are part of Austral Park.
Chung stated in his ruling that the plaintiffs were aware of the PPR project back in October 2013 but did not take any action.
At that material time, the plaintiffs did not file any application but only did so a year later, hence the ex-parte injunction was rejected and was heard inter parties.
After considering submissions and pleadings from both parties, Chung ruled that the powers of approval for the zoning of the Sports and Recreation Reserve, the reversion of Open Space etc are vested on the local government, City Hall, the Town and Country Planning Board and the State Government but not the defendant and that the defendant has no control over the decisions made by these government bodies.
He went on to state that the plaintiffs were seeking injunctive relief against the Government through the "back door", by seeking injunctive relief against the defendant because there can be no injunctive relief sought against the Government.
The plaintiffs also did not show that there is a prospect of success at trial although he agreed that there were issues for trial. On the adequacy of damages, Chung ruled that it was adequate that the defendant can pay the damages.
The balance of convenience does not lie in favour of the plaintiffs taking into consideration government policies and public interest in this instance.
The plaintiffs, in their submissions, had claimed that they and all residents of Austral Park are entitled to the Open Space and Sports and Recreation Reserve and that the land use of the Sports and Recreation Reserve has been converted for the purpose of constructing commercial buildings and the residents have a genuine interest to be protected and that the PPR project will cause irreparable damage to them.
The defendant had submitted that those parcels of lands were not included in the Austral Park Development Plan and that the PPR project is intended to be constructed on one of the Sports and Recreation Reserve parcels.
The defendant also submitted that in respect of the Open Space, a planning brief was submitted to City Hall and the Open Space reverted back to the defendant and approvals were obtained for the development and that the defendant is the lawful and registered owner of the Open Space and had the right to develop the Open Space.
The defendant submitted further that the PPR project is for the benefit of the public and that the State Government had approved to rezone the land to residential.
On Thursday, the plaintiffs were represented by counsel Daphne Wong and Jamie Wong, counsel Mary Florence Gomez and counsel Edina Sung Burongoh on behalf of the defendant.
Counsel Melissa Tan held a watching brief for Rangkai Juta Development Sdn Bhd.