City Hall not entirely absolved of responsibility despite fallen tree being on private land
Can Kuala Lumpur City Hall still be held liable despite claiming that the tree which fell in front of Menara IMC in Jalan Sultan Ismail on May 7, killing one motorist, was on private land?
Given the close proximity of the tree with public facilities, including a bus stop, pedestrian walkway, and a public road, questions have arisen as to the local council’s liability, given that it is the approving body for development in the city.
Local government expert Derek Fernandez said under the law, liability would depend on what had caused the tree to fall.
He said that because the tree was next to a public road, City Hall must have visited the site to check for any potential risks, before granting approvals for construction works, and this includes putting measures to ensure that the tree was not affected by construction activities.
He said even if the tree was located on private land, City Hall can still be held liable if:
The public walkway works had damaged the roots of the tree
City Hall had given approval to the owner of the land to put in a pavement and did not take reasonable steps to ensure such works did not threaten public safety on the surrounding public areas, especially since the tree was protected and physically large enough to affect the surrounding use of public roads and walkways, and
The council did not ensure that no part of the tree and its roots were cut as the tree had a girth of more than 0.3m and was protected under the Town and Country Planning Act 1976 and the council’s Landscape Plan 2020.
Twentytwo13 reached out to City Hall to find out who had built and is currently repairing the pedestrian walkway and bus stop and is awaiting the council’s response.
Besides damage to the bus stop and the pedestrian walkway, the incident caused one death and damaged 17 cars.
Last Friday, City Hall, in a statement, said that maintenance for the tree in question fell under the land owner. The council also said that based on its Landscape Plan 2020, the owner of the land had requested for the tree to be ‘left’ at the site.
The council added it would assist those seeking compensation from the rightful parties.
Fernandez said while City Hall’s offer to assist those seeking compensation from the rightful parties was commendable, it does not absolve the council from responsibility.
“While the owner of the land is still responsible, it does not relieve City Hall from legal liability, especially if it can be shown that they (the council) had failed to exercise reasonable care in approving any works by the owner or its contractor, which were likely to affect, or injure the tree,” said Fernandez.
“Even though the land owner had requested for the tree to be left on its land, the council must make sure that approval granted to the land owner must not injure the tree, despite it growing on private land.”
Fernandez added that even though it is a ‘private tree’, it is still protected under the law – as it cannot be cut down due to its size.
“We are not sure what was approved (by the council). But based on the pictures, we can see a concrete pavement around the tree. Usually, you don’t use concrete around trees, but instead, use permeable pavers, so water can go in and out,” he added.
Permeable pavers is a type of pavement with high porosity that allows rainwater to pass through it, into the ground below.
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