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