Ara Damansara

Posted by LeeYK
Source: Star Mar 12

THE fiasco surrounding the gated and guarded neighbourhood issue will not be resolved even if the Housing and Local Governmnet Ministry were to release its own set of guidelines. In fact, any guidelines being drawn up by both the Federal and Selangor governments will be ultra vires, said planning lawyer Derek Fernandez.

Fernandez said two acts of Parliament — the Street, Drainage and Building Act 1974 (Act 133) and the Road Transport Act 1987 — directly prohibit any restriction of access to any public road by a private individual or residents association.

Segambut MP Lim Lip Eng, who is also a lawyer, agreed that the situation was getting out of hand and said that the laws would have to be amended before any guidelines could be enforced. Lim said that as an MP, he would push for the amendments at the next sitting of Parliament.

“Currently, every guarded scheme in the city is illegal and the only way to legalise it is to amend both the Acts; otherwise all the barricades, boom gates and steel drums obstructing public roads are an offence and can be challenged by anyone,” Fernandez said.

“People should not lull themselves into a false sense of security by thinking that the guidelines will protect them from legal action against the person who is determined to remove the barricades or who uses reasonable force in exercising his right to use the road,” he added.

To prove his point Fernandez cited a few examples:

·A young man intoxicated from a party crashes into a guard post near his guarded home and dies on the spot.
·A house burns down killing an entire family because the fire department was not able to use the fastest route to put out the fire as it was barricaded.
·An elderly man suffers a heart attack and paramedics were not able to get to him on time as the path leading to his house was blocked by several steel drums.

Who would be liable in each of these three instances?

Now picture this situation. A resident who usually uses a short cut to work to escape the jam on the main road discovers one morning that the road is barred and a guard post installed complete with a guard stationed at the site. He loses his temper when refused entry and crashes the gate. The scene becomes ugly and he assaults the guard in the process. Can he be charged for assault?

In the first three examples, Fernandez said the local authority and the RA can be sued for allowing the road to be obstructed and, in the case of the last scenario, the resident may take action against the RA for false imprisonment. He added that there could also be cases of insurance companies refusing to pay for damages to vehicles involved in accidents in a gated and guarded neighbourhood because they could argue that the accident did not happen on a public road.

“These are just some of the complications that can arise and any guidelines drawn up to resolve the gated and guarded issue are useless and will not prevent an individual from asserting his legal rights,” he said.

The only solution Fernandez said is to amend Section 46 of the 1974 Act and Section 80 of the Road Transport Act by adding the words — “unless approved by the local authority” to the required sections. He said this would legalise the guidelines and make them effective.

Meanwhile, Mohd Hatim Abdullah, a project co-ordinator of TTDI’s guarded scheme, said he was more concerned about his family’s safety than the legal implications of being sued.

“What can I do? I’ll do whatever it takes to protect my family,” Mohd Hatim said, adding that he, however, agreed that laws must be amended to legalise gated and guarded schemes in the city.

Resident Charles Ramesh, who lives in Bangsar, said he slept better at night knowing that a guard was patrolling the area, but agreed that the legal implications were also a matter that should be addressed and hoped that the government would do something to amend the relevant laws.