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24th October 2008 at the KL High Court before Judge Mdm Lau Bee Lan: JACBG Lawyer (YB Sivarasa Rasiah) continued with rebuttals of DBKL and Gasing Meridian Sdn Bhd (GMSB) challenges against the court’s granting of leave for Judicial Review with robust arguments on how DBKL have not complied with various requirements under the amendment to Town & Country Planning Act 1976 as in Act A1129, and the FT Planning Act 1982.
In the previous hearing (9th Sept 2008), Sivarasa had comprehensively replied to DBKL/GMSB argument that the Judicial Review application was outside time limit for filing of action. DBKL had claimed that residents should have filed action upon awareness of the sub-division of land approval(dated 2nd Oct 2007) and the clock ticks for Judicial Review action started then. This is despite DBKL’s assurance to residents on the 14th Nov. 2007 meeting with residents, when they were verbally informed of sub-division of land approval, that this approval is not a development order. The Director of Planning also assured the residents that a public hearing would be held before granting of development order. Despite requests for copy of the approval given, DBKL had not provided any copy until April 2008.
Sivarasa outlined 3 key regulations that established the rights of affected residents to a public hearing. These are:
i) Under the FT Planning Act 1982, requirement for a Local Plan gives rights to a public hearing, in absence of a Local Plan, the mayor should have given residents the right to a public hearing for proper planning
ii) In the amendment to the Town & Country Planning Act 1976 in 2001 (Act A1129), that became active in KL on 1st March 2002, requirement for public hearing to be given prior to development approvals is explicitly stated
iii) DBKL had argued that Planning (Development) Rules 1970 amended in 1994, gives them the right to restrict rights to public hearing to only change of land use or an increase in density. DBKL had erred in relying on these rules without due regard to the intent of FT Planning Act 1982 and Act A1129. They have also ignored that this Planning Rules 1970 are for “better” planning and not for avoidance of compliance with laws enacted by the Parliament.
Substantial references to clauses in above three regulations were made to demonstrate the extent DBKL had not considered the intention of the Parliament to strengthen and harmonize planning laws for the country. That is to say that KL cannot continue to be acting inconsistently with other authorities or ignore their need to comply with the National Physical Plan.
It was also pointed out that even without reference to the above regulations; DBKL is in breach of policies expressly stated in the KL Structure Plan 2020 (KLSP) that required their compliance. Significantly, the KLSP Policy EN 6 states that City Hall will not permit development on hillside with slopes that exceeds allowable level, rules and regulations set by Federal Government. By entertaining GMSB proposed development whereby about 50% of the development will be on slopes greater than 25 degrees gradient and without complying with mandatory guidelines in the “Garis Panduan Pembangunan di Kawasan Tanah Tinggi” (GPPKTT) as amended in 2002, DBKL has broken its own policy statement. This is only one of the many policies DBKL had chosen to ignore in giving development orders that including hoarding and earthworks to GMSB.
Again, delays in commencement of hearing at appointed times (both morning and afternoon sessions) caused by the many cases Judge Mdm Lau had to deal with, it was 4:40pm when Sivarasa finished his robust and comprehensive rebuttals of DBKL/GMSB challenges to validity of JACBG Judicial Review application. There are many other areas that Sivarasa could have elaborated on, but in the context of an inter-partes hearing for grant of leave for Judicial Review, only the key merits have been made to demonstrate that the application for Judicial Review is not vexatious (malicious and without proper cause) had been dealt with. More detailed and reasoned arguments can be expected in the Judicial Review hearing proper.
DBKL lawyer requested an adjournment for lack of time.
Judge Mdm Lau agreed to adjournment and set date for resumption of hearing for Wed. 26th November 2008 at 3pm.
Report by: Gary Yeoh for JACBG
APPEAL FROM JAC FOR BUKIT GASING
With each court hearing, it is increasingly obvious that DBKL is behaving in a highly unaccountable manner. Disasters such as those faced by resident of Medan Damansara and the problems faced by many because of traffic congestions, exacerbated by flash floods every time it rains and inadequate public transport, can but only point to the inadequacies of DBKL in the control and approval of developments. The 108 applicants for Judicial Review against DBKL seeks your support for the next court hearing as the grant leave for the Judicial Review in this inter-partes hearings is crucial for accountability of DBKL. We also seek your financial support as the ongoing hearing has mounting costs. Please click “How you can help us” to make contributions.
Attention all supporters of Save Bukit Gasing Campaign & residents of Fraser Towers, Cameron Towers, Maxwell Towers, residents of Gasing Indah (PJ side); Gasing Indah (KL side), members of the Media, NGOs and all interested parties.
High Court hearing is on Friday 24th October at 10:30am , 3th Level, Sivil 1. Kuala Lumpur High Court Complex.
This hearing concerns all of us. Amazingly, this will be the 9th time we will be at the court. Please communicate to your friends and neighbours early and get them to take sometime off. This hearing is critical as we hope to get a ruling by the High Court on “stay order” that will prevent DBKL from allowing GMSB to start any serious work at the site.
As usual, please try to car pool. Let’s try to get as many people to the court.
For directions to Kuala Lumpur Court Complex Jalan Duta: