Sabah building laws – The missing retaining wall at Vistana Heights

I am collating what I have written over the last few years to hand over to my lawyer in June.

The situation at Vistana Heights, with a 20-foot drop behind the houses and an unbuilt retaining wall despite assurances from the now-deceased developer, raises significant concerns, especially given the lack of response from Dewan Bandaraya Kota Kinabalu (DBKK), the Housing and Urban Development Board (LPPB) as landowner, and LYS Architect. The architect’s apparent lack of worry about my threatened legal action is curious, considering the discrepancies I have noted. 

The Retaining Wall in the Development Plans

The developer’s promise of a retaining wall implies it was either intended in the original design or deemed necessary due to the 20-foot drop. Retaining walls are essential for slope stability and safety, particularly in areas like Kota Kinabalu with hilly terrain.

2019, under the Uniform Building By-Laws 1984 (adapted for Sabah), the Principal Submitting Person (PSP)—here, LYS Architect—would submit building plans to DBKK, including site plans detailing levels, slopes, and structural elements like retaining walls if included in the design. A 20-foot drop (approximately 6 meters) far exceeds the typical threshold (around 1.8 meters or 6 feet) where retaining walls require specific structural design. If the retaining wall was in the approved plans, it should have been constructed. If it wasn’t included despite the drop, this raises questions about the adequacy of the design and DBKK’s approval process.

If the wall was planned but not built, the OC issuance could be flawed. If the wall was never planned, the architect may have overlooked a critical safety feature, potentially violating UBBL 1984 and professional standards.

As the PSP in 2019, the architect’s duties included:

Designing a structure that accounts for site conditions, such as a 20-foot drop necessitating a retaining wall.

Supervising construction to ensure compliance with approved plans.

If the retaining wall was in the plans but not built, their supervision was deficient. If it wasn’t planned, they may have failed in their duty of care under the Architects Act 1967 and Lembaga Arkitek Malaysia (LAM) guidelines.

In 2019, DBKK’s role was to approve building plans, including earthworks and slope management. Their lack of response might suggest the retaining wall wasn’t in the plans (questioning the approval process) or that they’re deferring responsibility to the architect.

LPPB, as the landowner could bear responsibility for ensuring the project met its commitments. Their silence reflects an unwillingness to address issues.

The architect’s lack of concern about a potential legal case could stem from several factors. (I’ll expand on this in my next post)

Having certified the development as fit for occupancy, they might believe their legal obligation is fulfilled, assuming the building was deemed “safe” without the wall (e.g., if a geotechnical report justified it—though unlikely for a 20-foot drop).

Without the retaining wall explicitly in the SPA, they might argue it was the developer’s verbal promise, not their responsibility. As I have been unable to obtain the retaining wall plan, I will depend on the lawyer to get the relevant plans from the Retaining wall section at DBKK.

In 2019, Malaysia’s legal system often required plaintiffs to prove negligence or breach with clear evidence. The architect might assume I lack documentation or resources to pursue a case. If this is the case, they are sadly mistaken. Even as of 2017 I took on a Publicly Listed Company for their shoddy work in the construction of the sewage pipelines in Kota Kinabalu.

The discrepancies—unbuilt retaining wall, height mismatch between the road height and house platform, and unresponsive parties—suggest possible negligence or misrepresentation.

I have no choice but to consult a lawyer about claims against the architect (negligence), LPPB (landowner liability), and the developer, not forgetting the other professionals involved.

The architect’s calm might reflect confidence in their legal position—or an underestimation of my resolve. Either way, the 20-foot drop remains a glaring issue that demands answers.