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The Star Online
Saturday November 21, 2009 Story and photo by OH ING YEEN
BUKIT Gasing residents triumphed 2-1 in a court appeal against the Kuala Lumpur City Hall (DBKL).
The judge had ruled that DBKL’s appeal against the High Court decision granting leave to residents to challenge a development order on a hillslope project in Bukit Gasing was dismissed in court, said lawyers R. Sivarasa and Derek Fernandez, who represented the residents.
As reported in StarMetro (“Ray of hope for Bukit Gasing folk”) on April 27, the High Court has granted the residents leave to proceed with an application to nullify the development order on a Bukit Gasing project issued on Oct 2, 2007 by the then Kuala Lumpur mayor Datuk Ab Hakim Borhan.
Big day: Bukit Gasing residents rejoicing the appeal court’s decision.
However, DBKL and the developer appealed to the Court of Appeal against the “leave” granted by the High Court, Joint Action Committee for Bukit Gasing (JACBG) committee member Victor Oorjitham said.
“It took us nearly 20 months and attending several hearings in court before we were granted “leave” by the court,” said Victor.
“Our stand is that no development of Bukit Gasing should be permitted because of the steep gradient on parts of the hill and unsuitable soil structure comprising sand and shale (compressed mud) and that if development was allowed, there would be landslides affecting the life and property of thousands of residents living close to the hill,” he said.
The residents have been in constant battle for almost two years with the city council and the developer Gasing Meridien Sdn Bhd (GMSB) pertaining to the hillslope development in Bukit Gasing that would affect 108 residents.
Maxwell Towers Joint Management Body (JMB) chairman Ashok Menon said this was a significant case for the country.
“Today is one of the rare days where justice is delivered. This is a matter of safety.
“We need to have a city council that upholds the rights of tax-payers, instead all indications point out that the council is pro-business.
“We are not against development and progress but it should be done in an accountable way,” he said.
According to Menon, previously, the DBKL allowed a public hearing when:
·there’s a change of density;
· there’s a change of land use; and
·anything that affects the residents.
“However, the third ruling was amended 18 years ago, hence residents do not have a say if the development does not affect density or land use.
“All we asked was for a chance to be heard,” he said.
Ashok pointed out that Bukit Gasing bore many similarities to Bukit Antarabangsa such as underground piping.
He fears the possibility of the Bukit Antarabangsa tragedy will befall them if hillslope developments in Bukit Gasing are given the green light.
Resident G. Ong who has been residing in Bukit Gasing for the past six years, was jubilant with the judgment.
“The environment should not be spoiled.
“Think of others and not just of what goes in the pocket. We hope that whoever sits in the judgment can come to their senses,” she said.
One resident remarked that “this is not the end of it”, implying that DBKL and the developers will pursue this matter and take it to the Federal Court.
Fernandez, who is also the Petaling Jaya city councillor, pointed out the differences between Kuala Lumpur and Petaling Jaya.
“Since 2008, there will be public hearings if there were objections to any developments in Petaling Jaya.
“However according to DBKL, this right is limited in KL, unless there’s a change to density or land use.
“Hopefully, this will signify a change where public participation is allowed in DBKL and I hope that this will be streamlined across the country whereby all neighbouring landowners have a right to be heard in any development taking place.
“The people must be heard,” he said.
http://thestar.com.my/metro/story.asp?file=/2009/11/21/central/5155291&sec=central
2009/11/20 – NST Online
PUTRAJAYA: Kuala Lumpur City Hall and a developer today failed to prevent 108 Bukit Gasing residents from challenging a development order by the Kuala Lumpur mayor pertaining to a hillslope development project in the area.
Court of Appeal Judge Datuk Paduka Zaleha Zahari and Datuk Mohd Hishamudin Mohd Yunus dismissed KL City Hall’s appeal in a 2-1 majority decision, with Justice K. N. Segara dissenting.
In an oral decision, Justice Zaleha said after going through the submissions of both parties, the applicant’s appeal was dismissed.
KL City Hall and the developer, Gasing Meridian Sdn Bhd (GMSB), are appealing against the High Court decision on April 24, in granting leave for a judicial review to the residents to quash the mayor’s order.
GMSB is the developer involved in the development of Sanctuary Ridge Kuala Lumpur City — a project to build 68 bungalows on a 15.5ha site in Bukit Gasing. – Bernama
http://www.nstp.com.my/Current_News/NST/articles/20091120160740/Article/
Nov 20, 09 4:26pm – Malaysiakini
Kuala Lumpur City Hall and a developer today failed to prevent 108 Bukit Gasing residents from challenging a development order by the Kuala Lumpur mayor pertaining to a hillslope development project in the area.
Court of Appeal judge Zaleha Zahari and Mohd Hishamudin Mohd Yunus dismissed KL City Hall’s appeal in a 2-1 majority decision, with justice KN Segara dissenting.
In an oral decision, justice Zaleha said after going through the submissions of both parties, the applicant’s appeal was dismissed.
The residents claimed that the mayor had failed to take into account that they had a right under common law to be given due notice, and be given a chance to voice their opinions in the decision-making process of planning.
KL City Hall and the developer, Gasing Meridian Sdn Bhd (GMSB), are appealing against the High Court decision on April 24, in granting leave for a judicial review to the residents to quash the mayor’s order.
GMSB is the developer involved in the development of Sanctuary Ridge Kuala Lumpur City – a project to build 68 bungalows on a 15.5ha site in Bukit Gasing.
‘Residents have rights’
Lawyers R Sivarasa and Derek Fernandez, appearing for the residents, told the media that the residents should have the right to voice their opinion as there might be landslides affecting the lives and property of those staying near the hill.
Read more: http://www.malaysiakini.com/news/117942
ANOTHER HURDLE CROSSED! A step nearer to preventing destruction of Bukit Gasing and saving the lives of residents
Bukit Gasing residents cheering outside the Court of Appeal
Our lawyer Mr. R. Sivarasa and YB Hee Loy Sian speaking with Bukit Gasing residents
Our sincere thanks to our lawyers Mr. R. Sivarasa and Mr Derek Fernandez
PUTRAJAYA, Nov 20
In early 2008, 108 owners / residents from Fraser Towers, Cameron Towers, Maxwell Towers, and Gasing Indah filed a court case in the High Court, Kuala Lumpur against DBKL and the developer Gasing Meridian Sdn. Bhd, to quash the Development Order (D.O.) granted by DBKL to Gasing Meridian to build 71 luxury homes on Bukit Gasing.
The first part of the case was to obtain “leave ” from the High Court to proceed with the main part of the case to establish why the D. O. should be set aside. After several hearings at the High Court over a period of about 18 months, the High Court in late 2009 granted the “leave” applied for.
DBKL and Gasing Meridian filed an appeal to the Court of Appeal, Putrajaya, against the Order for “leave” granted by the High Court. The Court of Appeal after hearing submissions from all parties, today dismissed the appeal of DBKL and Gasing Meridian, with costs.
Owners / Residents can rejoice with the decision as this is one step forward in our case to prevent the destruction of Bukit Gasing and to protect the lives and property of Owners / Residents living close to Bukit Gasing. Our sincere thanks to our lawyers Mr. R. Sivarasa and Mr Derek Fernandez and others who have been involved in the process and provided support.
Victor Oorjitham
Joint Action Committee
Thursday November 19, 2009 – The Star Online
Story & pictures by GEETHA KRISHNAN
CHERAS: A landslide behind the Cheras Awana flats yesterday afternoon flattened several vehicles and forced the evacuation of 10 families.
Three cars and a motorcycle were destroyed in the 2.30pm incident that occurred after a downpour
Scary sight: Residents taking a closer look at the landslide behind the Cheras Awana flats yesterday.
There were no casualties but losses were estimated at RM70,000.
Residents said that prior to the incident, a contractor hired by the Kajang Municipal Council was building a retention wall along the 7m-high slope.
Kajang OCPD Asst Comm Sakaruddin Che Mood issued the evacuation order upon visiting the site.
Five families were moved to the Cheras Permai community hall while the remaining families spent the night with relatives.
Kajang municipal councillor Ng Thien Chee said the contractor would be instructed to compensate the victims.
He said the council’s engineering department would investigate if work was carried out according to specifications but declined to say whether the slope was deemed unstable.
Completely wrecked: Two of the cars which were flattened by the landslide behind the Cheras Awana flats yesterday.
Flat owner B. Ravindran, 42, said both his Wira and Kancil were crushed in the mishap.
“My family and I are without cars now and it is going to be difficult to move around. My wife used the smaller car to send our kids to school,” he added.
Another resident P. Ananthakumar, 28, said there were two previous soil erosion incidents within the year.
http://thestar.com.my/news/story.asp?file=/2009/11/19/nation/5140503&sec=nation
The Malay Mail – Thursday, November 19th, 2009 06:32:00
CRUSHED: One of two cars buried under soil and stones in a landslip in Cheras yesterday
WHILE Ravindran Pani, 44, was busy at work yesterday afternoon, two of his cars were completely crushed by a landslip near his home in Taman Cheras Awana.
When he was first informed of the disaster by his wife, Ravindran thought there was only slight damage to his cars. It was only later that he was informed of the true extent of his loss.
“How am I going to send my children to school now?
“My wife and I need to use both the cars daily and now I don’t know what to do,” he said yesterday.
Another car and motorcycle was also crushed in the landslide. “I am concerned that the insurance company will not entertain cases like mine due to the fact that it was caused by nature. But let’s see what can be done later,” he said.
On the positive side, the landslide, which occurred during heavy rain, did not cause loss of life, even though the soggy soil had reached the foot of an apartment block.
Another resident, Norhayati Yaacob, 35, was informed of the incident by one of her neighbours and rushed home as soon as she heard the news. She was grateful that none of her belongings got hit by the landslip.
She, however, felt sorry for her neighbours who had their vehicles damaged. According to her, this was the first time such an incident had occurred in the area and urged the authorities to quickly address the situation before it worsened.
“I hope the authorities will act fast. Anyone can see how bad the conditions are now. I thank God that no one was trapped in the landslip.”
A fire engine from the Fire and Rescue Department in Kajang was deployed to the scene soon after the incident and seven firefighters were seen helping Kajang Municipal Council staff to clean up the mess late yesterday evening.
It is learnt that the cleaning process needs to be done carefully to avoid any further landslips.
http://www.mmail.com.my/content/19308-vehicles-damaged-cheras-landslip
| The Sun by Llew-Ann Phang
THE Petaling Jaya City Council (MBPJ) is conducting stabilisation and erosion control works on Bukit Gasing’s Sivan Temple site, with work going at a frantic pace due to the wet weather.Councillor Derek Fernandez said there is another 30% more to go on the hill covering Sections 6, 7 and 8.  Erosion works and stabilisation to the Siva temple foundation At a progress meeting on Nov 4, the Public Works Institute (Ikram) certified that more than half of the foundation repairs had been done on the said sections. “At Sections 1, 2 and 3 Caisson and hand-dug piles are being carried out. Only 10% has been done so far,” said Fernandez. He added that works on the hill also covers Sections 6, 7 and 8. Caisson and hand-dug piles involve personnel digging an eight-foot deep space before they place reinforcement tube into the ground and then filling it with concrete. Fernandez said rectification works had been delayed for a while and there was hardly any progress until an ultimatum was issued at a previous meeting between the council and the temple authorities. “The state government has been willing to alienate the land for the temple and the residents were in support of this but only on condition that procedures were properly followed,” he said. In August, Fernandez said the temple was asked to fund Ikram’s investigations into Sections 1, 2 and 3 of the slope. “The necessary funds (from the temple) were pulled in so Ikram could extend its investigations into land stability and stabilisation methods in Sections 1, 2 and 3 of the development,” he said. Ikram’s recommendations and instructions for soil rectification works are being carried out. Fernandez said the stop-work order, issued in October 2008, still stands but slope repair and stabilisation works are allowed. Earlier this year, Ikram found that the Sivan Temple development was a risk to public safety. Repair works started in August. The 40-year-old temple was first thrown into the limelight after a landslide in March 2007. The site where renovation works were being carried out was being transformed into a larger temple complex compared to the shrine and moderate temple that it was. What was originally planned to be a temple occupying a space of 1,400 sq m turned into a 5,700 sq m space for the three-storey complex made to accommodate 8,000 people, amid the building’s other attractions. MBPJ issued a stop-work on March 22, 2007, directing the demolition of the extended part of the construction but the order was ignored. On Oct 18 last year, MBPJ issued yet another stop-work order on the renovation and extension work after councillors Fernandez and A. Thiruvenggadam voiced their concern about public safety and the development. Questions on the land ownership arose and it was revealed that the land belongs to the state government. Subsequently, MBPJ and the state government – particularly Health, Estate Workers, Poverty and Caring Government exco Dr A. Xavier Jeyakumar, who is also part of the state’s three-man committee for non-Muslim religious affairs – have been working together closely to resolve the issue. |
| Updated: 09:24AM Mon, 16 Nov 2009 |
This is Part 2 of report on the Court of Appeal hearing on Wednesday, 11th November 2009
Bukit Gasing response as Respondent to the appeals
Legal counsel for Bukit Gasing, YB Sivarasa Rasiah (supported by Mr. Derek Fernandez), opened his arguments by bringing the judges attention to the site of the proposed building. Explaining that 3 condos (Fraser, Cameron and Maxwell Towers, total 6 block), houses in Taman Gasing Indah are all in close proximity to the proposed development. In addition, there is a 23 million litre reservoir with a 2 meter diameter pipeline along boundary of the proposed development. Proposed development will be on steep hill slopes.
The chronology of events was made to the court. He highlighted that the application for the 1st judicial review was submitted when it became clear that DBKL would ignore their concern for safety and had rejected a public hearing via the hand delivered letter of 31.1012.2007 from DBKL. This was despite the impression given at the 14.11.2007 meeting with Director of Planning KL (Tuan Haji Mahadi) that DBKL would respond to petitions for a public hearing. He highlighted that minutes of the 14.11.2007 (dated 21.11.2007) was provided to DBKL with request for detail of approval for sub-division of land. However, DBKL did not respond to repeated request for information.
YB Sivarasa pointed out that the High Court, Honourable Judge Madam Lau Bee Lan, had given details of arguments by the parties and her reasons for granting extension of time in her written judgement. The residents only became aware of a DO (in the form of approval of sub-division of land on 2.10.2007) in affidavits from the developer dated 15.4.2008. He stated that residents could not file an application on verbal communication without having details.
During exchanges between counsels and judges, the Honourable Datin Paduka Zaleha commented that the residents did not know a DO was given at the time suggested by the appellants.
YB Sivarasa also confirmed his withdrawal of cross appeal against the dismissal of the 2nd judicial review on the DOs for Hoarding and Earthworks by the High Court. This was in the context that the Honourable Madam Lau Bee Lan’s written judgement had stated that these two DOs are consequential and purely administrative, resulting from DO for sub-division of land.
With regard to locus standi, YB Sivarasa, highlighted various case histories and that the reasons for application for 1st judicial review are not “frivolous or vexatious”. He pointed out the High Court had considered the arguments presented at the inter partes hearing before grant of leave for judicial review.
Note: The Honourable Judge Madam Lau Bee Lan’s written judgement had highlighted the contention between the parties on whether the Town and Country Planning (Amendment) Act 2001 (Act 1129) or the FT Planning Act (1982) with “1994 Rules” should apply. She concluded these are arguable issues.
YB Sivarasa told the court that numerous guidelines in the Kuala Lumpur Structure Plan (KLSP) were breached in DBKL’s approval of DO to developer. In particular, Policy EN 6 that states “City Hall shall not permit development on hillside with slope that exceeds the allowable level, rules and regulations set by the Federal Government”. The Total Planning and Development Guidelines (2nd Edition) by Ministry of Housing and Local Government (Department of Town and Country Planning, Peninsular Malaysia) states under “Steep Slope Areas” that, “Construction is not permitted in areas on steep slopes (exceeding 25 degrees) “. In addition, there are common law reasons which were detailed in his submission in response to the appeals.
He highlighted that the Appellants litigating the issues extension of time for leave and locus standi militate against views of Chief Justice in the recent Federal Court judgement of “Majilis Agama Islam Selangor v. Bong Boon Chuen.
In closing responses, DBKL stated that the Kuala Lumpur Structure Plan is not a legal binding requirement when considering the development orders. Counsel for the developer reiterated the key points he had made.
The Honourable Datin Paduka Zaleha, after consulting the other judges moved to adjourn the hearing and fixed 20th November 2009 (coming Friday) at 10:00am to deliver the court’s decision on the appeals. The hearing ended well after 5:00pm.
Note: The “1994 Rules” is an amendment to the Planning (Development) Rules 1970, made by DBKL (under powers conferred by s 64 of FT Planning Act) after DBKL lost the case between of Datin Azizah v. Dewan Bandaraya Kuala Lumpur[1992] for failure to notify and hear objections from residents before granting development order.
Gary Yeoh
JAC for Bukit Gasing
The appeals filed by DBKL and developer, Gasing Meridian Sdn Bhd (GMSB) against High Court Judge Madam Lau Bee Lan’s decision on 24th April, 2009 to: i) allow extension o f time for judicial review application; and, ii) grant of leave on judicial review to quash the development ordered issued by DBKL for sub-division of land dated 2nd October 2007, commenced on Wednesday, 11.11.2009 morning. The Court of Appeal judges were, Honourable Datuk Nihrumala Segara, Honourable Datin Paduka Zaleha bt. Zahari and Honourable Dato’ Mohd. Hishamudin bin Haji Mohd. Yunus
Appellant – DBKL reasons for appeal
Counsel for DBKL, Mr Romesh Abraham, spent more than of 2 hours expounding the view that the Honourable Judge Madam Lau Bee Lan had erred in her decisions.
He argued that extension of time should not have been given as the judicial review was filed outside the 40 days period required for consideration. The meeting that DBKL held with residents on 14.11.2007 should be the start date for time consideration for judicial review to quash the approval of Development Order(DO) for sub-division of land (dated 2.10.2007) to GMSB.
DBKL had told Bukit Gasing residents that no DO had been issued at the meeting and approval was only an administrative approval for sub-division of land. Minutes of the meeting (dated 21.11.2007) by the JAC for Bukit Gasing to DBKL, recorded residents’ understanding that no DO was issued and sub-division of land was an administrative approval. DBKL acknowledged that residents had requested copy of the sub-division of land approval and no reply had been given.
Honourable Dato’ Mohd. Hishamudin questioned why DBKL did not reply to the residents’ requests. The lawyer responded that the Federal Territory Planning Act (1982) does not require DBKL to respond to residents’ request. Despite a number of attempts by the judge for an answer, he stated that the letter (hand delivered) dated 31.12.2007 to residents that no public hearing would be held was the only required response by DBKL. Honourable Datin Paduka Zaleha commented then that residents were given the impression that no DO had been issued. Notwithstanding the exchanges, DBKL maintained that the date of DBKL verbal communication of sub-division of land approval (i.e. on 14.11.2007)had to be the basis for the Honourable Judge Madam Lau Bee Lan’s assessment on limitation of time for judicial review. The Honourable Dato’ Mohd. Hishamudin then noticed that “first communicated” on 14.11.2009 date submitted by DBKL for appeal hearing could not be right.
On the grant of leave for judicial review to quash the DO issued by DBKL for sub-division of land dated 2.10.2007, DBKL again exerted its view that the Federal Territory Planning Act (1982) and “1994 Rules” should be the only basis for the Honourable Judge Madam Lau Bee Lan’s assessment of locus standi threshold, not the substantive nature of issues. The Honourable Judge Madam Lau Bee Lan’s assessment that substantive measure for locus standi had been met.
Note: The ‘1994 Rules” is the basis DBKL uses to justify that requirement for public hearing will only apply when there is an increase in density or change of use. FT Planning Act (1982) had included “material consideration” by the Mayor in considering planning applications that “1994 Rules” now removes.
Appellant – GMSB reasons for appeal
After lunch, Dato RR Sethu, representing GMSB, argued that the issue of time is crucial. In essence, the application was made “out of time”. He referred to a number of case examples at length to make his point. Significantly, he argues that planning permission for the sub-division of land given by DBKL to GMSB is a valuable right and must be protected by rules. From his perspective, GMSB must have the right to build on the land and the “Bangunan” land title given in 1977 must be upheld.
He further argued that the applicants for judicial review had no locus standi. Again, he reiterated that: i) under the “1994 Rules”, the High Court should have rejected the application; and ii) the Town and Country Planning (Amendment) Act 2001 (Act 1129) is not applicable to Kuala Lumpur. His view was that only the FT Planning Act together with “1994 Rules” should apply in Kuala Lumpur.
Honourable Dato’ Mohd. Hishamudin queried where in the Act 1129 was Kuala Lumpur stated as excluded, when the Act had stated as to cover Peninsular Malaysia. There was some exchanges that this scribe could not follow. However, Dato Sethu maintained that FT Planning Act was never repealed and hence Act 1129 does not apply to Kuala Lumpur.
Please go to Part 2 for Respondent to appeals report.
Gary Yeoh
JAC for Bukit Gasing
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