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03 October 2012 | last updated at 08:23AM
PUTRAJAYA: A five-year legal battle by 108 Bukit Gasing residents to stop a hill slope project adjacent to their Petaling Jaya neighbourhood has come to an end.
The panel of 5 Federal Court judges delivered a shocking and surprising decision to reject our leave for appeal on the Court of Appeal majority decision (2 to 1) against our Judicial Review application to require DBKL to hold a public hearing regarding approval of Gasing Meridian Sdn Bhd’s proposed development at Bukit Gasing (KL-Side).
We had anticipated that the Federal Court would have allowed leave to hear our argument that the majority decision by the Court of Appeal has serious implications. The minority judgement in our favour was that the Town & Country Planning (Amendment) Act (2001), that was gazetted on 20 February 2002 by the then Minister of Housing and Local Government (Dato’ Seri Ong Ka Ting) is applicable to the Federal Territory of Kuala Lumpur. Hence, DBKL should not have approved developments on Bukit Gasing without giving a public hearing to residents.
For more than 5 years, we have challenged DBKL and the developer through the courts. We have argued that as residents threatened by landslides by Gasing Meridian Sdn Bhd’s proposed development on the steep hill slopes of Bukit Gasing, we have to be given the right to a public hearing by DBKL. The Town & Country Planning (Amendment) Act 2001 (TPCA), passed by our Parliament and subsequently gazetted should have required DBKL to give us a public hearing.
Despite our losing through a majority decision by the Court of Appeal in March 2012, we were heartened by the minority decision of Y.A. Dato’ Jeffery Tan. He strongly argued that the TPCA should apply and our right to public hearing be given. His considered opinion was that the Planning (Development) (Amendment) Rules 1994 instigated by DBKL and approved by the Minister then, to amend Rule 5 of Planning (Development) Rules 1970 should not be used to limit rights of residents to a public hearing before planning approval.
In short, Y.A Dato’ Jeffery Tan argued that Rule 5 (after amendment in 1994) is a subsidiary legislation. In his view the general principle of statutory interpretation should be that subsidiary legislation may not be broader than the enabling legislation.
What is plain to see with the decision of the Federal Court today is the following:
- Residents of KL do not have the same rights to a public hearing as other residents living outside of Kuala Lumpur in Peninsular Malaysia.
- Non-KL residents unfortunate enough to live next to land under DBKL will not have the same rights to a hearing under DBKL planning rules as he/she has within Selangor.
- Whilst the Parliament may have amended the Town & Country Planning Act to ensure the whole of Peninsular Malaysia (defined as including KL) is governed by the same regulations, DBKL can continue to limit the rights of people by utilizing Rule 5.
Note: Rule 5 as used by DBKL means affected neighbours will have no right to be heard or informed if a development approval do not involve a change in density or use of land.
We have tried to seek justice and transparency through the courts and have failed. However, we will continue to speak out and trust that the court of public opinion as well as public desire for elected mayors to ensure accountability and transparency will prevail.
Should we continue to allow authorities to decide policies that negatively impact our rights? Should their unfeeling and uncaring attitudes continue unquestioned?
It is time that we demand accountability from those that govern us. Let us not trust in platitudes and lies anymore.
JAC for Bukit Gasing.