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Star seeks to declare TAED project unlawful
Published on: Wednesday, May 24, 2017
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Kota Kinabalu: Six members of Parti Solidariti Tanah Airku (Star) filed for leave for a judicial review seeking a declaration that the Tanjung Aru Eco Development (TAED) project is ultra vires and unlawful under Section 9A and Schedule II of the Land Ordinance Cap 30.The applicants Ferdinand Quimson, Alfred Raphael, Steven Chong, Homer D Lubaton, Arthur Arwin Tolentino, Samuel J Lai and Marcel Jude Joseph who is also the Star's Tanjung Aru Division protem committee named Kota Kinabalu Mayor, Sabah State Government and Director of Lands and Surveys Department as the first, second and third respondent.

The applicants in a statement, claimed the TAED project was in breach of Section 9A and schedule II of the Sabah Land Ordinance Cap 30 as the word 'alienate' as defined under the Ordinance means to lease or otherwise dispose of State land on behalf of the government in consideration of the payment of such rent and of such premium, if any as may be required.

"The undertaking of the TAED project would not be possible without land being alienated by the second respondent or the third respondent and the relevant government agencies.

"The alienation would be taken in many forms and it would include leases, sublease, rights of way, licences and temporary licences etc. The objective of Section 9 is clear and intended to protect the coastline of Kota Kinabalu including the Tanjung Aru Beach and to preserve the Tanjung Aru Beach as it is for all generations.

"Therefore the TAED project and the undertaking thereof is clearly in contravention of Section 9A and Schedule 2 of the Sabah Land Ordinance.

"In recent weeks, there has been a mobilisation of works on the Second and Third Beaches.

This mobilisation and undertaking of works include the removal of vegetation on the Second and Third Beach and the tearing down of all buildings and properties currently on the Second and Third Beach of Tanjung Aru.

"The undertaking of this project works would not be possible without contravening Section 9A and Schedule 2 of the Land Ordinance of Sabah even if it is the grant of the right of way or Temporary Occupation Licence.

"And in any event, when the TAED project is completed, and with the development that includes residential homes, hotels etc, such construction cannot be achieved without contravening Section 9A and Schedule 2 of the Sabah Land Ordinance.

"Therefore, the inception of the TAED project in itself is unlawful and void ab initio," they said.

They claimed that even if the alienation of State land did not involve the land in Tanjung Aru Beach but only the reclaimed land adjoining Tanjung Aru Beach, this would still contravene Section 9A as the purpose and objective of Section 9A and the Schedule 2 of the Sabah Land Ordinance is to protect and preserve the shoreline and the Tanjung Aru Beach as it is.

"The Tanjung Aru Beach as it is means the layout, the environment, the vegetation, the sand, the flow of the sea water, the waves, the ecology, the facilities and all other aliments as it is now or as it was few weeks ago before the works started on the Tanjung Aru Beach .

"In other words, the works itself being undertaken is unlawful and contravenes Section 9A because the objectives intended will contravene this relevant law eventually if not now."

They argued that the TAED project was and is undertaken to fundamentally change the beach from what it is now with something totally different. The beach as it is now has generally been preserved for generations in its original state but the beach that it will become after the TAED project is completed will be totally different.

"Not enough cognizance has been given by the Respondents to the actual changes in the ecology of the beach when the TAED project has been completed. This changes to ecology cannot be known or predicted with total accuracy even if there is intensive studies by experts. Given the massive size of the TAED project, the ecological impact must be given years of studies to find out what will happen to the ecology of Tanjung Aru Beach as it is.

"The TAED project is to turn Tanjung Aru Beach into another Blackpool or California with a lot of properties, entertainment and other activities but this is old school because when you increase human activities along beaches and coastlines you create more pollution through human activities."

The correct ecological approach would be to leave Tanjung Beach and preserve Tanjung Beach as it is now.

To modify and alter the beach in the manner as envisioned by the TAED project is ecologically unsound," the applicants said.

They are seeking an order of certiorari against the respondents to set aside the master plan on the ground that the Tanjung Aru Eco Development Master Plan is ultra vires and unlawful under Section 9A and Schedule II of the Land Ordinance Cap 30.

They also seeking an order of prohibition against the respondents whether by themselves or by their servants or agents to proceed with the development of the Tanjung Aru Eco Development Master Plan as it is ultra vires and unlawful under Section 9A and Schedule II of the Land Ordinance Cap 30.

The applicants are also seeking an order of mandamus to the second and third respondents to compel the first respondent and their agents or servants to stop, discontinue and or abandon the implementation of the Tanjung Aru Eco Development Master Plan whether by itself or its servants or agents and to restore the Tanjung Aru Beach to its original state and condition before the implementation of the Tanjung Aru Eco Development Master plan or any part thereof.

They are also seeking a declaration that the Tanjung Aru Eco Development Master Plan is ultra vires and unlawful pursuant to Section 9A and Schedule II of the Land Ordinance Cap 30 and in consequence thereof null and void.

They also sought costs and another relief deemed fit by the court.

The hearing of the leave application has been set for June 20.





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