It has been some while the last updated on the Save Bukit Gasing Judicial Review court proceedings. Frankly, it has been hard not to give in to despair at the extend the protagonists against transparency and justice will go to prevent our reasons for opposing DBKL’s approval of the GMSB development proposal on Bukit Gasing (KL side) from being heard.

Before providing updates, a brief recap of our journey in seeking transparency and justice maybe helpful.

Back in 2005, word abound that Gasing Meridian Sdn. Bhd. (GMSB) had submitted new proposals for developing the 15.5 hectares (approx. 38 acres) on steep hill slopes of Bukit Gasing (KL Side). Almost 50% of the hill slopes are above 25 degrees gradient. Before this submission, GMSB had submitted a fairly extensive development proposal in 1995 and lost its court action to have DBKL acquire its land after DBKL’s approval for an amended 1995 development proposal, subject to a 2 stage approval condition. DBKL had held public hearing on the 1995 development proposal.

Since 2005, various concerned individuals and organizations had made presentations and appeals to FT Ministry and DBKL on risks to lives and damage to environment. Various senior officials (FT and DBKL) appeared to be sensitive to our concerns, with some actually supportive of not allowing development. Despite all the appeals, it became clear in 2006 that sustained pressure must continue to have our fears addressed properly and the Joint Action Committee for Bukit Gasing (JACBG) was formed, with support from local residents’ association leaders and concern citizens.

JACBC had communicates and met both DBKL and FT Ministry officials to highlight our fears that the development on Bukit Gasing will be disastrous to safety of lives and property. These fears have been amply proven by landslide disasters across Klang Valley such as Highland Towers, numerous deadly landslides in Ulu Klang areas subsequently, major landslide at Bukit Antarabangsa in Dec 2008 and many more that has been recorded in this blog.

Despite our efforts with DBKL and their apparent willingness for dialogue, on the last day of 2007, letters were delivered to residents in the Gasing Condos (Fraser, Cameron and Maxwell Towers) and Gasing Indah, that DBKL will not conduct a public hearing on our concerns toward GMSB’s proposed development. It was fortuitous that Mr. Derek Fernandez (currently an MBPJ councillor amongst being champion for transparency on development approvals) was able to smell a rat and JACBG helped to organize a group of 108 residents to file for a Judicial Review on DBKL’s decision to deny a public hearing on the development on 11th February 2008.

The “rat” that was feared was DBKL’s attempts to facilitate development order to GMSB by being economical with the truth and procedural manoeuvres. After many inter-parte leave for Judicial Review hearings at the High Court, leave for Judicial Review was granted on 24th April, 2009. DBKL and GMSB filed an appeal against High Court grant of leave of to the Court of Appeal. Having lost there (Court of Appeal agreed with the High Court on 20th November 2009), they appealed to the Federal Court. So, the “rat” is amply proven.

So, let me move on to a brief update on Federal Court hearing on 10th March 2010.

There were 3 Federal Court Judges (Chief Justice Tun Dato’ Seri Zaki bin Tun Azmi (lead Judge), Dato’ Md. Raus bin Sharif and Dato’ James Foong Cheng Yuen)on the panel for the leave to appeal hearing.

Counsel for DBKL, Mr Romesh Abraham made the case for appeal on locus standi of the High Court to hear the Judicial Review, in particular with respect to “Rule 5” of the Federal Territory (Planning) Act, 1982 as amended by Planning (Development) (Amendment) Rules 1994. There were numerous other similar lines of argument. He was interrupted on a number of occasions by the lead Judge, Chief Justice Tun Dato’ Seri Zaki bin Tun Azmi (CJ) with questions less than favourable to his line of argument.

The CJ commented that the appeal seem to be premature and was inclined to reject the leave for appeal. Specifically, he felt there seem to be arguable points and Judicial Reviews were the avenue the public should be able to use in this case. However, Mr Romesh insisted and continued with his arguments. Further arguments along similar lines were presented by Dato RR Sethu, counsel representing GMSB.

Mr Sivarasa Rasiah, counsel for Bukit Gasing argued that there were indeed reasonable justification for leave to be granted by the High Court, focusing on issues of steep hill slope development fears and the Town and Country Planning (Amendment) Act 2001 (Act 1129). These and others were considered by the High Court and Court of Appeal in granting leave for Judicial Review.

Two of the three Judges were inclined not to grant leave for the appeal. However, one judge appeared to be considering the merits of the appellants (DBKL & GMSB). After a brief discussion between the Judges, the hearing was adjourned with the setting of Friday, 19th March as date that the Federal Court will present its decision on grant of leave for the appeal.

Note: “Rule 5” is the amendment made by DBKL mayor to the FT Planning Act (1982) in 1994 to enable DBKL to justify that requirement for public hearing will apply when there is an increase in density or change of use. The amendment was made after DBKL lost the case between of Datin Azizah v. Dewan Bandaraya Kuala Lumpur[1992] for DBKL’s failure to notify and hear objections from residents before granting development order for a development. FT Planning Act (1982) had included “material consideration” by the Mayor in considering planning applications before the “1994 Rules” amendment.

Significantly, DBKL rejects Town and Country Planning (Amendment) Act 2001 (Act 1129) as applicable to them despite the fact that this amendment was to apply to Federal Territories. It is shocking how DBKL persists in claiming non accountability to the people is purports to serve.

The protagonists against transparency and justice are continuing to deny us the right to Judicial Review despite leave granted by High Court and agreed by Court of Appeal. JACBG is appealing to all interested in transparency and justice for support to the fight. The tactics used has significant increase our legal costs and we appeal to readers and friends to contribute to the Save Bukit Gasing Trust Fund. Click “How you can help us..”

JACBG is organizing a charity dinner on 10th April 2010 at the community hall in Gasing Indah/Petaling Gardens. We would be grateful for your support. Please visit again shortly to see more details on the event.

Gary Yeoh
JAC for Bukit Gasing

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”-Martin Luther King Jr.