U-Thant residents seek to bring SPE highway photos to court, govt will object

Lawyer Balan Nair Thamodaran, Jalan U-Thant residents Enisah Baharuddin, Joy Devi Kunanayagam, R. Raja Seelan, lawyers Datuk Ambiga Sreenevasan and David Mathews in Putrajaya, July 25, 2019. — Picture by Shafwan Zaidon
Lawyer Balan Nair Thamodaran, Jalan U-Thant residents Enisah Baharuddin, Joy Devi Kunanayagam, R. Raja Seelan, lawyers Datuk Ambiga Sreenevasan and David Mathews in Putrajaya, July 25, 2019. — Picture by Shafwan Zaidon

PUTRAJAYA, July 25 — The Jalan U-Thant residents challenging a portion of the ongoing Setiawangsa-Pantai Expressway (SPE) project will seek to show the court photos of the highway to prove that it does not comply with the Malaysian Highway Authority’s (LLM) regulations on highways.

The Jalan U-Thant residents Enisah Baharuddin, Joy Devi Kunayagam, Datuk Dr N. Kunayagam, as well as Jalan U-Thant residential property owner Dharma Sdn Bhd had applied for leave to present the latest photos taken on July 7 of the SPE highway to the Court of Appeal.

Dharma’s lawyer Balan Nair Thamodaran said the High Court had in December 2017 found that the SPE highway’s design complied with LLM regulations, but argued that the new 23 photographs of the current stage of the SPE’s highway construction would show non-compliance.

“We are now adducing the photographs to show otherwise, that’s the purpose,” he explained to reporters when met at the court complex here.

Balan Nair’s client has filed a July 16 affidavit to support the application to seek the Court of Appeal’s leave to present the photos as further evidence, while a similar application dated July 11 was filed by the three residents along Jalan U-Thant.

Lawyer Gavin Jay Anand Jayapal, who represented the three residents, explained the importance of the photos.

“The point of law is the photos, if the High Court judge had them, she might have decided in a different way,” he told reporters.

Lawyers Balan Nair Thamodaran and Gavin Jay Anand Jayapal speaks to the reporters after the hearing of appeal against the High Court’s decision to reject U-Thant residents’ JR challenge against SPE highway in Putrajaya, July 25, 2019. — Picture by S
Lawyers Balan Nair Thamodaran and Gavin Jay Anand Jayapal speaks to the reporters after the hearing of appeal against the High Court’s decision to reject U-Thant residents’ JR challenge against SPE highway in Putrajaya, July 25, 2019. — Picture by S

The High Court had previously dismissed the challenge by 10 Jalan U-Thant residents and property owners against the Desa Pandan stretch or alignment of the elevated SPE highway, rejecting their arguments that the Desa Pandan portion was illegal or had been approved despite breaching the LLM regulations.

LLM’s Highway Authority Malaysia (Setbacks of Highway) Regulations require highways to have a minimum setback of 13 metres from the boundaries of private properties, but the residents claimed that the SPE’s builder had in March 2017 disclosed that the highway’s design was not in compliance with the regulations.

The residents had failed a lawsuit in April 2017, highlighting among other things that the SPE highway’s design meant it would be built too close to their houses, including a setback of just over 1.1 metres from Enisah’s house.

The SPE highway’s construction firm later claimed that it had revised the design to meet the 13-metre setback requirement at the Jalan U-Thant area.

A view of the under-construction Setiawangsa-Pantai Expressway project at Jalan 1/76 at the Taman U-Thant area. — Picture by Hari Anggara
A view of the under-construction Setiawangsa-Pantai Expressway project at Jalan 1/76 at the Taman U-Thant area. — Picture by Hari Anggara

After failing at the High Court in December 2017, the three residents and Dharma had separately filed appeals against the Works Minister, LLM, the federal government and SPE builder Lebuhraya Duke Fasa 3 Sdn Bhd.

Today was initially scheduled to be the Court of Appeal’s joint hearing of the two appeals, but the issue of the latest photos of the disputed Jalan U-Thant section of the SPE highway was mentioned today.

Senior federal counsel Nik Mohd Noor Nik Kar, who represented the Works Minister and the federal government, today however said the Attorney-General’s Chambers will object to the bid by the residents to present the new photos of the SPE highway project.

“I will object, because we want to determine if it will have an effect on the High Court’s decision,” Nik Mohd Noor told the Court of Appeal, also saying that the government lawyers would want to determine when and where the photographs were taken.

Nik Mohd Noor indicated the government would need time to respond to the affidavits filed by the Jalan U-Thant residents and property owners, which the AGC had only received earlier this week.

Lawyers for all parties also applied for the appeal hearing to be postponed to another date.

Lawyer Datuk Ambiga Sreenevasan, who represented the three residents, argued that the case should be deferred as the hearing would take about half a day due to the many parties involved.

“We think this appeal will take a whole morning...It’s a very long highway, it’s a big problem,” she said when anticipating the time taken to present arguments.

The Court of Appeal’s three-man panel headed by Datuk Ahmadi Asnawi and composed of judges Datuk Mary Lim Thiam Suan, Datuk Abdul Karim Abdul Jalil allowed the application to defer the case.

The same panel had earlier today dealt with and heard other cases before the Jalan U-Thant case was called up.

Lim asked lawyers to arrange for an earlier hearing date to have the case heard within this year, with Ambiga then confirming that the lawyers intend to do so.

August 1 has been scheduled for case management, where the court is expected to fix a hearing date for the appeal and the applications by the Jalan U-Thant residents to bring in the photos as further evidence.

An aerial view of the Setiawangsa-Pantai Expressway project (formerly DUKE 3 highway) as seen at Jalan 1/76 in the Taman U-Thant area. — Picture by Hari Anggara
An aerial view of the Setiawangsa-Pantai Expressway project (formerly DUKE 3 highway) as seen at Jalan 1/76 in the Taman U-Thant area. — Picture by Hari Anggara

In their legal challenge filed in April 2017, the residents sought for several court orders, including to quash the approval of the Desa Pandan alignment and its design which they said were not in line with LLM regulations and guidelines, as well as declarations that the alignment was unlawful, irrational and unreasonable for not complying with those regulations and guidelines.

The residents also wanted the court to declare that the SPE’s Desa Pandan alignment’s approval had failed to take into account the impact on Jalan U-Thant residents’ health and the negative effect on their properties’ value, and to declare that the public acceptance survey was unlawful and invalid as Jalan U-Thant residents were not asked for their views or concerns before the alignment’s approval despite their homes being close to the new highway.

In their appeal to the Court of Appeal, the residents will argue that the High Court had made legal and factual errors in its decision to not grant them the orders sought for.

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