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