Developer seeking judiciary's intervention to compel council to issue OC

KOTA KINABALU: Five hundred buyers of Garden Condominium in Bundusan are in a quandary over the non-issuance of Occupational Certificate (OC) for the project due to access road problem.

In light of the attitude and position taken by the Penampang District Council (PDC), Marvelgold Development Sdn Bhd is left with no remedy but to seek the judiciary's intervention to compel the council to issue OC to its Garden Condominium project.

Marvelgold director Dato' Winson Yong said an appeal to the Court of Appeal was filed on Monday against the decision of the High Court to grant PDC's application to strike out the civil suit by the company.

"The objective of Marvelgold's application in court is to resolve the issuance of OC.

"If PDC is adamant that their position is correct, they should have allowed judicial intervention to decide on issuance of OC.

"By striking out the action, PDC has forgotten its social responsibility to the 500 purchasers who intend to make Penampang their preferred place of residence," he said in a press conference here yesterday.

Since November 2016, Yong said Marvelgold had completed the construction of the Gardens Condominium with Certificate of Practical Completion duly issued.

In January 2017, the appointed architect submitted to PDC an application for an OC to be issued.

Since then, he said all technical departments including Fire Department, Environmental Department, Drainage and Irrigation, Water Department, Sabah Electricity and Works Department provided letters in support for an OC.

PDC only inspected the Gardens Condominium in April 2017.

After the inspection, Yong said PDC issued a letter in May 2017 providing only two conditions before issuance of the OC, namely install additional lightings near the bin centre which Marvelgold had immediately fulfilled; and to resolve the access to the Gardens Condominium with Unsur Pancar Sdn Bhd, the developer for the completed Taman Formosa on the adjoining land.

"This shows that the approved access was through Lorong Taman Formosa Road Reserve."

At all times, during and after the inspection of the Gardens Condominium, PDC had never challenged that the approved access was through Lorong Taman Formosa B, he said.

"The allegation that the approved access was through Taman Mahkota first appeared during the High Court proceedings and is an afterthought.

"However, Marvelgold disagrees with the unprecedented condition that Marvelgold has to resolve with Unsur Pancar Sdn Bhd relating to access to the Gardens Condominium via Lorong Taman Formosa Road Reserve.

"Such condition subjected Marvelgold to opportunistic demands of Unsur Pancar Sdn Bhd," he pointed out.

Since then, Yong said Marvelgold had numerous meetings with PDC including a meeting attended by representatives of Unsur Pancar with a view to resolving the access.

However, he said this had been unsuccessful.

It was pointed out that the failure or non-surrender of the road reserve by Unsur Pancar to PDC is a matter for the latter to resolve.

He said the explanation by Unsur Pancar was that its whole development had not been completed yet and therefore the right to use the road was still with the developer.

"Taman Formosa has been developed since the early 1980s. It is a major development.

"If the land owner says that the road reserve would only be surrendered to PDC after the whole development has been completed, why is that residents from other housing estate at the back are allowed to use the access but not the Gardens Condominium?"

Additionally, Yong said residents at the area had been paying assessment to PDC even though the developer had not handed over the housing estate to the council.

Yong added that the Ministry of Local Government and Housing had also made numerous initiatives and conducted several meetings with PDC as well as the State Attorney General and the Lands and Surveys Department to resolve the access.

"The meetings concluded with the Ministry of Local Government and Housing instructing PDC to formally acquire the said Lorong Taman Formosa Road Reserve being access to the Gardens.

"Till now, PDC did not act."

Despite all efforts by Marvelgold, Yong said no amicable solution was achieved.

"In the best interest of 500 purchasers in mind, Marvelgold had to bring the matter to the High Court for judicial intervention with a view to achieving a speedy resolution.

"Marvelgold sought to compel PDC to issue an OC and to set aside the unprecedented condition, requiring Marvelgold to resolve access with Unsur Pancar because this is akin to holding Marvelgold to ransom."

On August 23, 2017, Marvelgold filed the civil action to the High Court.

In an affidavit sworn by the District Officer of PDC, Yong said the District Officer admitted that the District Officer suggested to Marvelgold to make contribution on goodwill basis to Unsur Pancar; and that Marvelgold had complied with condition one and two was only a suggestion by PDC.

"However, PDC's action or suggestion is unprecedented.

"PDC as a local council is taking a position to advance the interests of another private developer, Unsur Pancar Sdn Bhd to derive unfair advantage or benefit from Marvelgold."

challenge the second condition because the subject matter involved a public authority and a private entity.

“Instead of allowing the court an opportunity to hear the arguments and merits of the case, PDC as a local council chose to strike out the action and prevented the parties to litigate the substantive matter and issues surrounding the issuance of an OC.”

He said PDC had wasted time and opportunity for the matter to be heard by the court in striking out the action.

Yong said the government should take a position that was fair to the buyers.

“The buyers have to pay housing loans every month. All of them are Sabahans, many of whom are first-time home buyers.

“They are the ones who suffer.”

On another note, Yong said District Officer Luvita Koisun who assumed authority in PDC some time in the year 2014 misinterpreted the Development Plan (DP) approved by the council in 2013.

“It was misleading and a blatant lie for Luvita to claim that the approved access to the Gardens was through the northern boundary via Lorong Mahkota 1.

“The alleged Lorong Mahkota 1 through the Northern boundary falls under the jurisdiction of Dewan Bandaraya Kota Kinabalu (DBKK) and is beyond PDC’s jurisdiction to approve such access.”

By introducing the second condition in the May letter, he said PDC expressly required Marvelgold to resolve access with Unsur Pancar .

He said this proved that the approved access to the Gardens is Lorong Taman Formosa Road Reserve.

“If the approved access is indeed through Lorong Mahkota 1, PDC would have no authority to approve or grant the Development Plan to Marvelgold in the year 2013.

“PDC did not even forward Marvelgold’s DP to DBKK for comment and/or approval.

“At all material times, the Development Plan for the Gardens was submitted and approved by PDC as the lawful authority over the development.”

If the approved access to The Gardens project was through Lorong Mahkota 1 which is under the jurisdiction of DBKK as alleged by Luvita, perhaps DBKK could shed some lights to her allegations, Yong said.

“In light of the attitude and position taken by PDC, Marvelgold is left with no remedy but to appeal to the Court of Appeal against the decision of the High Court with a view to reinstating PDC as a party to the civil action.

“Marvelgold’s only remedy is to seek judiciary’s intervention for a comprehensive solution and to compel PDC to issue an OC to a development duly approved by PDC.”