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

http://www.thesundaily.com/article.cfm?id=40233

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 1^st 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 2^nd 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 1^st 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 (2^nd 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  20^th 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

Court of Appeal, Putrajaya on Wednesday, 11th November 2009

The appeals filed by DBKL and developer (Gasing Meridian Sdn Bhd) against High Court Judge Madam Lau Bee Lan’s decision on 24^th 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 2^nd October 2007, commenced this morning.

It took a greater part of 5 hours for the lawyers to present their arguments today. The lawyers respresenting DBKL and the developer took about 4 hours to expound how the Honourable Judge Madam Lau Bee Lan had erred in making her decisions on 24th April 2009.  Mostly, they covered the same grounds as they had done in the 13 months of hearing before.

JAC for Bukit Gasing lawyers , YB Sivarasa Rasiah (supported by Mr. Derek Fernandez on a pro-bono basis) represented robust arguments that the Honourable Judge Madam Lau Bee Lan decisions as in her written judgements presented to Court of Appeal last week (2nd November 2009) should be upheld and pointed out the substantive reasons for her conclusions.

The Appeal Court Judges (3 judges presided) will announce their decision on Friday, 20th November 2009 at 10am.

This is just an interim report to keep readers informed.  I hope to have a more detailed report posted  in the next couple of days.  Please do come back to check for more information that will be posted in coming days.

Gary Yeoh

JAC for Bukit Gasing.

Updated: Monday, 9th November.

The appeal hearing today was short. With the agreement of the lawyers, the Court of Appeal consented to the appeal of both DBKL and developer (Gasing Meridian Sdn Bhd) to be heard together for Wednesday, 11th November (coming Wednesday) at 10am. The rescheduling of the hearing was not unexpected.

JAC for Bukit Gasing would appreciate those who  able to come and show support our cause.  It should be an interesting hearing. The Palace of Justice (Istana Kehakiman) is in Presinct 3.  Signposts in Putrajaya do follow standards of “Malaysia Boleh”.  To find Presint 3, best not to travel to far after Presinct 2, actual location of Palace of Justice is next to Wisma Sumber Asli and Wisma Tani (Kementrian Petanian area).

Look forward to more supporters on Wednesday.

Gary Yeoh – JAC for Bukit Gasing

Original Post below:

DBKL and the developer( Gasing Meridian Sdn Bhd) have filed an appeal against High Court Judge Mdm Lau Bee Lan’s grant of leave on our Judicial Review against DBKL for denying us a public hearing on proposed development on Bukit Gasing (KL Side).

The appeal hearing will be held at Court of Appeal, Putrajaya on this coming Monday, 9th November 2009 at 9am.

Please do consider coming to the hearing if you are able.  Your thoughts and prayers for Justice would be much appreciated. If you wish to support our fight for transparency and Justice, do click “How you can help us…”

PS: Do check again if you are planning to come, just in case there is last minute change to hearing schedule

JAC for Bukit Gasing.

Almost two years ago, a number of residents affected by the proposed development by Gasing Meridian Sdn Bhd (GMSB) were at a meeting with the Director of Planning for DBKL. We were informed that DBKL had approved the sub-division of land owned by GMSB in October 2007. We were informed that it was only an administrative approval and not a development order. There was no need to be concerned. The impression given to us was that he welcomed our input at the meeting and would take note of the petitions already submitted to DBKL. He assured us that DBKL would be diligent and apply stringent conditions on the development, including having further dialogue with us.

On 11^th Feb 2008, 108 residents filed for a Judicial Review by the High Court on DBKL’s rejection of their request for a public hearing. They were concerned about the possibility that not doing so will result in DBKL having a “free hand” in endangering their lives and property.

The facts as they now stand are:

• The “administrative” approval for sub-division of land is part of a development order
• 3 days after that meeting, on the 17^th November 2007, a further development order for erection of hoarding was given
• The welcoming of input and suggestions for further dialogue replaced by hand delivered notice to residents on the 31st December 2007, rejecting our request for public hearing
• Assurance of stringent conditions transformed to issuance of a further development order for earthworks on 31st January 2008, under “Sekysen 70 Akta Jalan, Parit dan Bangunan 1974( AKTA 33) dan Undang Undang Kecil Kerja Tanah (Wilayah Persekutuan Kuala Lumpur) 1988.

Medan Damansara – Damansara 21

The Mayor of KL, Datuk Ahmad Fuad Ismail, together with Ikram and FT Ministry representatives met with Medan Damansara residents on Thurs 22nd October 2009.

The Mayor of KL, Datuk Ahmad Fuad Ismail, together with Ikram and FT Ministry representatives met with Medan Damansara residents on Thurs 22^nd October 2009. The message to the residents appears to be that it’s up to the residents to submit a memorandum to DBKL if they do not wish to have the development.

It is curious that the Mayor had said “Something must be done without further delay. However, it is not easy for us to make a decision at this juncture as we do not want to be seen as siding with either the developer or the residents”. As the key person tasked to work for the welfare of the residents of KL, should he not have taken the side of the residents and not permit development until such firm regulations and ability of his officials to monitor, assure and enforce safe hillside development are in place?

DBKL do not appear to be concerned about how lives were put at risks due to failures in approvals given for developer to commenced development, nor were they interested in revealing how they will make the developer (and consultants) liable for inadequacies revealed in Ikram’s investigation into the landslide that affected 2 homes in August 2008.

The Ikram consultant, En. Mohd Taufik Haron, went to great length to demonstrate how thorough Ikram had been in investigating the causes of failures.

The Ikram consultant, En. Mohd Taufik Haron, went to great length to demonstrate how thorough Ikram had been in investigating the causes of failures and the “stringent” standards they have demanded. The fact that it took 4 proposals before Ikram could be satisfied need not necessarily imply that the development will be safe. Perhaps it does more to demonstrate how developers and consultants are woefully incapable of providing safe proposals for hillside development.

In attempting to justify Ikram’s thoroughness in investigations, hill slopes were presented as inherently unsafe and comparison was made to how by development, the hill slopes would be made safer. Fortunately, the Medan Damansara residents were quick to rebut the over enthusiasm with a terse reminder that they were happily feeling save without any landslides affecting them for over 50 yrs and it took less than a year before development almost caused lives.

Damansara 21 development is 5.75 acres with almost 15% above 35 degrees gradient.

Will Bukit Gasing Proposed Development be approved on the same basis as Damansara 21?

GMSB’s proposed development covers 15.52 hectares (38.35 acres) with almost 50% of the slopes above 25 degrees gradient. In addition, there is a 23 million litre water reservoir adjacent to the proposed development with a 2 m diameter x 400m pipeline running along the boundary of the proposed development.

It took residents at Bukit Gasing 13 months to get a grant of leave for a Judicial Review by the High Court. Yet, DBKL and the developer are determined not to allow a public hearing to address our now amply justifiable concerns for safety. They have appealed against the grant of leave for Judicial Review.

DBKL and the developer’s appeal will be heard coming Monday, 9^th November at the Court of Appeal in Putrajaya, commencing 9am.

When one considers the plight of residents of Medan Damansara and the performance of DBKL that lead to the disaster of landslide at Damansara 21. Can anyone be surprise at the measures taken by DBKL to avoid transparency?

Our PM has called of a 1Malaysia, Performance Now, People First to his administration. I wonder what our refrain should be. Any suggestions? Could 1Devexxper, Performance no-nxxd, People lxxt be appropriate for DBKL?

Gary Yeoh

JAC for Bukit Gasing

From other blogs: Damansara 21 Stop Work Order Lifted: Developer Boleh Again

Sunday September 20, 2009 TheStar Online

KUALA LUMPUR: A car was partially buried in a minor landslide at Jalan Wangsa 7, Bukit Antarabangsa, near here.

The incident occurred around 5.30pm yesterday following heavy rainfall for the past few days in the area.

Ampang Jaya OCPD Asst Comm Abdul Jalil Hassan said no one was hurt in the incident but a few policemen had been placed in the area as a precautionary measure.

“The landslide is a small one and the soil has been cleared,” he said when contacted yesterday.

Bukit Antarabangsa had been hit by landslides previously, causing deaths and damages to properties.

The latest was in December last year when a landslide claimed five lives and damaged 14 houses.

http://thestar.com.my/news/story.asp?file=/2009/9/20/nation/4753858&sec=nation

Saturday September 19, 2009 TheStar Online

PETALING JAYA: Two guidelines on the implementation of government projects and the development of highland areas have been approved by the National Council for Local Government.

The Housing and Local Government Ministry said the Hillside and Highland Areas Development Planning guideline would coordinate two similar guidelines on hillside development.

“The guidelines will ensure the implementation of measures to ensure safety to lives and property, and the protection to the environment,” the housing ministry said.

It said state governments and local authorities should discuss the new guidelines with developers of projects that had been approved earlier but had not started yet.

The guidelines were approved during the 62nd council meeting in Putrajaya on Thursday, which was chaired by Deputy Prime Minister Tan Sri Muhyiddin Yassin.

A second guideline stated that approval for such projects would be managed by the Public Works Department (PWD).

http://thestar.com.my/news/story.asp?file=/2009/9/19/nation/4751008&sec=nation

En.Kamar Mohd. of Save Bukit Gasing at the 1st public dialogue on hillslope development in Selangor

MalaysiaKini –  Sep 18, 09

The Selangor government has taken the first step towards tackling the landslide problem that has plagued the country’s hills for years by gathering concerned parties today for the first in a series of dialogues on how best to prevent them.

With the first in a series of dialogue on the proposed guidelines in the planning and implementation of hillslope developments, the Selangor state government hopes to study the effectiveness of the draft guideline in ensuring the safety of resident living in hill slope areas.

Around 300 participants including parliamentarians, state assemblymen, councillors, residents association and non-governmental organizations attended the dialogue hosted by the state’s town and country planning department.

The next round will be held after Hari Raya at areas where hillslope developments are rampant like Subang Jaya, Ampang Jaya, Kajang and Selayang.

In his keynote address, Selangor Menteri Besar Khalid Ibrahim said the draft is mainly focused on the safety of residents and protecting the environment.

To date there has been no proper guideline to monitor hillslope development, resulting in the loss of lives and property. So with an effective guideline the hope is that such tragedies can be avoided in the future, said Khalid.

Residents’ concern over enforcement

The draft among others proposed stricter criteria in determining buffer zones between hillslope and properties and the formation of a slope maintenance unit to monitor the development from the technical, management and financial aspects, according to the press statement released by the Selangor State Secretariat.

Several participants had expressed reservations over the enforcement and implementation aspects of the proposed guidelines as they involved collective effort on the part of local authorities, the developer and the residents themselves, it said.

“They cautioned the government not to lift its ban on Class 3 and 4 hill slope development until they are assured of effective implementation. Some also urged the state government should make the developers accountable in the event of any mishap,” the statement added.

Last month, Khalid had announced that the state government had drawn up new guidelines for hillslope development for implementation by the year-end in response to intense public pressure.

In a related development, the National Council for Local Government yesterday approved two guidelines on the implementation of government development projects and the development of highland areas during its 62nd Council meeting in Putrajaya.

The “Guideline for Hillside and Highland Areas Development Planning” is to “ensure safety of lives and property and the protection of the environment according to legal requirements”.

Chaired by Deputy Prime Minister Muhyiddin Yassin and attended by mentri besars, chief ministers and several Cabinet ministers, the council decided to make it compulsory for all new development projects at hillside areas to adhere to the new guidelines.

Read more here: http://malaysiakini.com/news/113236

More Photos…

News Article courtesy of Malaysiakini. Photos by Save Bukit Gasing.

TheStar Online

By LOH FOON FONG

KUALA LUMPUR: A newly-approved Guidelines for Hillside and Highland Areas Development Planning bans any development on slopes more than 35 degrees.

The Cabinet made the decision on Wednesday, said Housing and Local Government Minister Datuk Kong Cho Ha.

Development was also prohibited on slopes between 15 and 35 degrees displaying signs of erosion, land instability or laden with sensitive geological materials.

Under the no-development announcement, only infrastructure such as roads, tunnels, bridges, telecommunications and low intensity electricity infrastructure of national interest were allowed to be built on slopes more than 35 degrees — classified under Class IV in the guidelines. The guidelines were synchronised from the Ministry’s Guidelines on Hillside Development on Highland and the Natural Resources and Environment Ministry’s Guidelines on Highland Development.

There are four classes and four levels of height in the new guidelines, said Kong in a press conference.

For Class I — slopes would be less than 15 degrees; Class II — slopes 15 to 25 degrees, Class III — slopes 25 to 35 degrees and Class IV — slopes more than 35 degrees.

The four slopes would be divided into four levels of height — low land (below 150m); hill land (150-300m), highland (300-1,000m) and mountain (more than 1,000m).

“Each development project application must be accompanied by a technical report prepared by a registered engineer. The technical requirements have also been tightened further,” Kong said.

The ministry suggested for more comprehensive guidelines following the Bukit Antarabangsa landslide last year, he said.

“The guidelines would be implemented after a meeting is held with the National Council for Local Government, which would be soon,” he said.

Kong said the Cabinet also decided on Wednesday that it wanted to create an agency under the Works Ministry’s Slope Management Unit to monitor, coordinate and inspect, maintain and regulate development projects on slopes.

He said there were 236 projects between 25 degrees to 35 degrees that were frozen following the Bukit Antarabangsa landslide.

“Those that had begun work were allowed to go on, but projects that had not started would be left to the discretion of the local government.”

http://thestar.com.my/news/story.asp?file=/2009/8/14/nation/4517005&sec=nation