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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.

This follows the Federal Court’s decision today to unanimously dismiss a leave application by the residents to appeal against the Datuk Bandar of Kuala Lumpur and a developer.
A five-man bench led by Tan Sri Raus Sharif said the residents failed to cross the threshold requirement under section 96 of the Courts of Judicature Act 1964 to obtain leave to appeal their case in the Federal Court.
The residents posed a question whether the Town and Country Planning Act 1976, and amended in 2001, was applicable to the Federal Territory of Kuala Lumpur.
(The applicants had to show that the question posed was of public interest and that it was being raised for the first time.)
“We are of the view that no further argument is needed as the apex court favoured the majority decision of the Court of Appeal,” he said.
The court also awarded RM10,000 each in costs to the Datuk Bandar who was was represented by Romesh Abraham and the developer, Gasing Meridian Sdn Bhd (GMSB).
Lawyer Datuk R. R. Sethu represented the developer.
Abraham said the Federal Territory Planning Act overruled the Town and Country Planning Act as amended in 2001.
He said residents in Kuala Lumpur could only be heard if there was a change in land use or increase in density.
Sethu said the project was underway since 2010  and the residents had also not filed a stay after they lost in the High Court.
On March 6, the Court of Appeal concurred with the High Court that dismissed the  residents’ judicial review application to challenge the issuance of a development order by the Kuala Lumpur mayor.
Court of Appeal judge Datuk Zaharah Ibrahim delivered a 2-1 majority verdict. Datuk Ramly Ali concurred with her while Datuk Jeffrey Tan Kok Wha, now a Federal Court judge, dissented.
The majority ruling disagreed with the residents’ submission through their lawyer R. Sivarasa that the amended Town and Country Planning Act which stipulated residents should have a right to a public objection hearing extended to the Federal Territory.
Zaharah said the Federal Territory (Planning) Act 1982 was applicable to areas falling under the Federal Territory.
In this Act, a public hearing is possible only if the land is used for other purposes or the proposed move leads to an increase in population density.
Tan in his minority ruling said Kuala Lumpur City Hall failed procedurally by disallowing the residents a public hearing before issuing the order, which falls under the Town and Country Planning Act.
The residents filed the application in 2008 for a judicial review at the Kuala Lumpur High Court to stop the Kuala Lumpur mayor’s development order for a 15.52ha site in Bukit Gasing to build 71 bungalow lots.
The Oct 2, 2007, order was issued to GMSB to execute earth works and subdividing the area, before building the luxury units.
GMSB claimed the land was private and had not been gazetted as a green lung or natural forest.
The residents claimed in the judicial review application that the mayor had failed to give them the right to be heard in the decision-making process.
The High Court dismissed their application on Sept 6, 2010, paving the way for the residents to come to the Court of Appeal.
Bukit Gasing Joint Action Committee member Mohamed Kamar Mohamed said the verdict to deny them leave to appeal overlooked the public interest factor.

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.

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