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BY MAYURI MEI LINLIN
KUALA LUMPUR, March 13 — A developer is pursuing a group of Bukit Gasing residents over a judicial review they sought over its project, claiming damages in an extraordinary move observers fear will intimidate private citizens from objecting against government agencies.
Although Gasing Meridian Sdn Bhd is now free to conduct its development after defeating the judicial review filed against it and the Kuala Lumpur City Hall (DBKL), it is adamant on claiming damages from the 103 residents who sought to block the hillside project in their neighbourhood here.
According to civil liberties lawyer Syahredzan Johan, the developer’s claim will set a precedent that will make it onerous for private individuals who turn to the courts after exhausting other official avenues to challenge public decisions.
“I am personally very concerned if the developer is allowed to claim damages against the residents from the judicial review application.
“This is a matter within the realm of public interest and the fear is that if the developer succeeds in its application this would discourage concerned citizens from seeking redress with the courts in the future,” he told Malay Mail Online.
The Bukit Gasing residents’ challenge against the developer dates back to 2008, when the group filed for a judicial review to compel DBKL to hold a public hearing over its decision to grant a development order to Gasing Meridian for a hillside project in 2007.
They claimed DBKL did not provide adequate notice of the development or hold a public hearing before it granted the order.
The application was rejected by the High Court and was appealed all the way to the Federal Court in 2013, where it was also ultimately dismissed.
The apex court added a twist to the case when the judges deemed fit to award RM10,000 in costs to both DBKL and Gasing Meridian as well as undetermined damages to the latter, which it sent back for the High Court to decide.
Following another round of appeals against the order for damages, the matter is now back before the Federal Court once more.
“Public hearing is an avenue for the public to actually have their concerns aired and for responses to be made to those concerns,” Bukit Gasing resident Ashok Menon told Malay Mail Online.
“By saying that you can end up having to pay damages for that, that’s like muscling up everyone. That’s what happens in a dictatorship,” Ashok said, adding that it was unclear why the developer was awarded damages.
Bukit Gasing assemblyman Rajiv Rishyakaran echoed both men’s concerns, adding that the dispute had been between the residents and DBKL, rather than business-related.
“I feel it’s not right. Just because a group of residents file a judicial review, a third party such as the developer should not be taking legal action to financially penalise the residents, who were bringing up a matter of public interest, and not commercial in nature.”
Not all are against the Federal Court’s decision to allow Gasing Meridian a claim to damages from the residents. Property lawyer Chris Tan explained that such a move would help to prevent the public from pursuing frivolous action against corporations.
He also disagreed that the particular case would set a precedent that would make it burdensome for private individuals with valid complaints to seek legal action against government entities.
“The precedent is not set to aim at the parties asking for public hearing for them to pay for damages, but to prevent the public from being against others without proper grounds, and facts of the case vary from each other,” he explained.
“Any successful party is entitled to damages… provided they can prove the same to the presiding judge. Therefore it is fair in that sense,” Tan said.
The Federal Court was initially scheduled to hear the residents’ appeal against the order for damages, but the case has since been postponed to June 29.
In 2008, 103 residents within Bukit Gasing area, in the interest of several thousand residents living in the proximity of Bukit Gasing (KL side), commenced a Judicial Review on the DBKL Mayor’s refusal to grant concerned residents a public hearing on the development of 68 luxury homes on Bukit Gasing- KL side. Gasing Meridian Sdn Bhd applied to join the case as a 2nd Respondent.
The primary reason for the filing of Judicial Review was the fear for loss of lives and damage to properties. The proposed development on Bukit Gasing (KL side) had several steep gradients and the composition of the soil is sand and shale. In the circumstances, the residents feared that the development if allowed, would cause landslides and end in a tragedy similar to the Highland Towers tragedy (1993). There have also been several other tragic landslides at developments on steep gradients resulting in the loss of lives and destruction of property. Bukit Antarabangsa (December 2008), Orphanage at Hulu Langat (May 2011), Bukit Setiawangsa (December 2012), Dang Wangi LRT (May 2013) and Cameron Highlands (November 2014) are just some tragic recent examples.
The Bukit Gasing case was filed in February 2008 and on 6th September 2010, the High Court, Kuala Lumpur gave judgement against our request for a public hearing and thus in favour of the developer permitting development on Bukit Gasing. This decision was affirmed by the Court of Appeal and the Federal Court. The High Court in May 2013 also allowed the Developer the right to file assessment for damages against the 103 residents. This decision was affirmed by the Court of Appeal. The case is now in the Federal Court, where a “Leave Application “is pending for the case to be heard by the Federal Court
The allowing of damages to be assessed against applicants in a Public Interest Judicial Review case, is unprecedented in Malaysia. It is even more questionable as the award is to Gasing Meridian that had joined the case as a 2nd Respondent. In fact in August 1996, a Judicial Review case was brought by an associated company of Gasing Meridian in their development in Bukit Gasing (Petaling Jaya side) for damages, was thrown out by the High Court, Shah Alam, Selangor.
The allowing of assessment of damages, in the present case, has severe consequences. It will prevent any citizen or civil society from filing a Public Interest case, for fear of having to pay damages if they should lose their case. This is of particular significance where Local Councils and developers throughout Malaysia are concerned. No one will dare to bring a Public Interest case against them. It is a denial of every Malaysian’s fundamental right to seek judicial review on actions by authorities that impact their fundamental rights.
Citizens have a fundamental right to seek a Public Interest Judicial Review at the Courts on actions taken by authorities that are questionable. Such a re-course must be maintained without the threat of damages that will significantly intrude on the rights of any citizen or body of citizens.
We seek your support to counter this threat to fundamental rights of all Malaysians. As a first step, you can support by signing the Petition.
On behalf of residents and supporters of the Judicial Review Case against DBKL’s refusal to grant a public hearing on development on steep hill slopes in Bukit Gasing
Sep 9, 2010 -1:51pm
It is with great regret that the High Court has rejected the people will’s to be heard over a controversial development on Bukit Gasing. The writing is on the wall for this development. There will be blood on their hands be it the judge who rejected the people’s application, the Kuala Lumpur mayor (as the servant of the rakyat), the developers and also those potential buyers of this controversial development.
No matter how much has been said about preserving this pristine green lung, money and greed makes us all blind including all of those mentioned above. Bukit Gasing is among the few pristine green lungs left in Kuala Lumpur. For decades the debate has been whether it is safe to build on this hill.
Thursday, 26 August 2010 Malaysia-today.net
I was quite shocked when I went up Gasing Hill the other day, I saw plots of land being sold, starting from the bottom right up to the top, on both sides of the road leading to its peak. This saddened me because Gasing Hill, for years, has been a green lung to residents of Petaling Jaya. Not only that, being the highest point in Petaling Jaya, it used to be a place to “get fresh air” and look down upon Petaling Jaya to enjoy the scenery. Many people use it as a jogging path, faithfully jogging every morning, enjoying the fresh air and the natural surroundings of a beautiful “woodland”/jungle. Many parents often bring their children up Gasing Hill to feed the monkeys. Infact, this has been a weekly event for me as my 3 year old daughter is fond of feeding the monkeys. The plots of land for sale go right to the top (peak). Each parcel range from 20,000sq ft to 30,000 sq ft and there are about 60 parcels in total. I called the number on the board of a parcel and they confirmed, the parcels were for sale for people to build their houses. Coincidently, per sq ft cost RM150, indeed for the rich and wealthy….
Tuesday July 27, 2010 TheStar Online
AS RESIDENTS affected by a proposed development on Bukit Gasing (KL-side), we are cheered by the mayor’s comment that Kuala Lumpur City Hall (DBKL) will not agree to development on four hills — Bukit Tabur, Bukit Gasing, Bukit Nenas and Bukit Sungai Besi.
Given this statement, we hope the mayor will promptly withdraw the development order for Bukit Gasing.
It is heartening that the mayor seems to desire inclusion of residents in the approval process for hillslope developments. We hope this means that no approval of development orders on hillslopes will be issued by DBKL before a public hearing henceforth.
Affected residents should be given geotechnical reports, proposed construction designs and details of studies that DBKL has done to validate the safety of proposed development on a hillslope.
Details of agencies consulted by DBKL, with details of considerations and recommendations made by them should also be given.
Without these details, residents will not be able to feel safe nor can they participate meaningfully to help DBKL in the delivery if its duties and responsibilities.
We also hope that the mayor will quickly move to have the four hills gazetted as open areas or protected reserves.
The restriction of hillslope development should not be seen only from a safety perspective. There are many important considerations from environmental and quality of living perspectives.
The Kuala Lumpur Structure Plan 2020 has objectives to improve the quality of living, working and business environment to make KL a world-class city. One of its objectives is to “create a Tropical Garden City sensitive to its natural site and appropriate to its tropical regional location.”
Hence, preservation and conservation of the limited green areas represented by hills must be actively pursued by the mayor.
Joint Action Committee for Bukit Gasing
This is exactly what we fear – develop an unsafe hillslope and see the disasterous after-effects months or years later. This is an MBPJ foul up. Though there were no approvals, MBPJ looked the other way, since it was a ‘sensitive’ subject.
Gods can’t be bribed. But there are no shortages of ‘experts’ willing to certify that the Bukit Gasing development will be safe, when there’s money to be made. Will DBKL and the Developers ever learn?
Landslide on hill temple
by Meena L. Ramadas, theSUN, June 2, 2010-06-04
PETALING JAYA (June 1, 2010): A landslide at the Sri Maha Kaliamman temple in Bukit Gasing last night startled some 20 devotees who were in the midst of prayers, but fortunately did not cause any injuries.
The landslide, which occurred at 9pm, damaged the back portion of the temple, resulting in the temple committee deciding to close the house of worship until further notice.
A temple worker S. Aridharan, 25, told theSun devotees who were sitting on the floor in the main prayer hall when the landslide occurred. A fridge nearby toppled over, narrowly missing the devotees.
Sri Maha Kaliamman worker S. Aridharan, 28, shows the area where the landslide occured. The store room’s zink roof and wall backed by the hill was destroyed by the landslide.Sri Maha Kaliamman temple two workers clean up the debris caused by the landslide.
Temple chairman P. Puharasan, 29, said the landslide affected the newly extended section of the temple and damaged the store room. “We spent more than RM200,000 to on the extension and it was supposed to be opened this year,” said Puharasan, who was clearly disheartened by the incident.
He said this is the third time a landslide has occurred at the temple in recent years. The temple is backed by a small hill. The first two landslides occurred in 2006 at the old section of the temple.
“That is why we extended the temple to make it more safe for the devotees,” he said. “And now, the landslide has occurred at the new section.” He said between 300 and 500 devotees pray at the temple weekly and feared for their safety if more landslides occurred.
Puharasan said the temple should be relocated in view of the landslides. “We are appealing to the state government to offer any sort of assistance,” he added.
He said he had made several requests to the state government on it, but has not received a reply. When contacted, Bukit Gasing assemblyman Edward Lee said the temple committee has agreed to identify a suitable location for relocation and pledged to assist them.
It takes guts, to stand up against the shameless ravaging of the last vestigaes of green. It takes even more dogged determination to find the means for upkeeping such priceless remaining patches of our eco-system.
Facelift for Bukit Gasing
By Sheila Sri Priya, NST Streets, May 30, 2010
PETALING JAYA: Bukit Gasing has suffered much wear and tear over the years because of the large number of visitors it attracts especially during the weekends. It is estimated that Bukit Gasing receives almost 1,400 visitors during the weekend and 500 on a weekday between morning to late evening. The Petaling Jaya City Council has plans to provide parking facilities, an environmental education centre and public toilets at an estimated cost of RM200,000.
There are no parking spots now available for Bukit Gasing visitors.
The Petaling District Office has allocated 40ha of land, beside the official residence of Petaling district officer, to be converted into a free parking lot with 81 parking spots for visitors. The big trees will be spared when the piece of land is converted into a car park.
The environmental education centre will act as the Bukit Gasing information hub for visitors, especially students. Information on the types of plant, animal and insect species that can be found in the park will be displayed there.
Users will need to pay 20 sen per visit to the public toilets which will go towards the toilets’ maintenance. Petaling Jaya environment health officer Mahzura Mohd Amin said vandalism was a problem. “Thieves and drug addicts have stolen aluminum signboards and sold them for cash. The entrance to the park looks run down and broken,” she said.
Mahzura said the entrance will soon be blocked with better barricades to prevent motorcyclist from entering Bukit Gasing. The stolen sign boards, broken bridges and worn steps inside Bukit Gasing will be replaced and repaired within three months. The estimated cost for the work is RM150,000.
Councillor Derek Fernandez said the council had an allocation of only RM100,000 a year for the maintenance of Bukit Gasing. He said the amount needed to be increased to at least RM500,000.
“The Taman Jaya lake gets an allocation of RM500,000 every year for upgrading and maintenance works. Bukit Gasing also has a large number of visitors and we need to maintain this precious green lung.
“City Hall must play an active role and care for their side of the hill,” said Fernandez.
“On weekends, cars are parked on both sides of the road because there aren’t parking spots. Once the car park is ready, we hope the visitors will park at the allocated space. The council might tow cars that are parked at the roadside once the car park is ready.”
Fernandez thanked volunteers for their efforts to clean Bukit Gasing. He urged those who visit Bukit Gasing to only leave their footprints behind and nothing else.
Some of you may have seen the film “A Bridge Too Far” or have heard the phrase “a bridge too far”. Is SaveBukitGasing digressing a tad too much? I hope not.
On 17 September 1944, thousands of US & British paratroopers descended from the sky by parachute or glider up to 150 km behind enemy (German) lines. Their goal was to secure bridges across the rivers in Holland so that the Allied army could advance rapidly northwards and into Germany with hope to end WWII before Christmas 1944. Alas, after 10 days of intense fighting, the failure to secure the bridge at Arnhem (the last major bridge that had to be secured) amidst various problems, caused the Allied army to withdraw and the campaign failed.
For SaveBukitGasing and the residents affected by proposed development by Gasing Meridian Sdn Bhd, our fight is against DBKL and FT Ministry. Our fight had been driven by a fear of “Highland Towers” disaster at our doorsteps. Our determination had been further stiffened by the unfortunate landslide disaster at Bukit Antarabangsa.
As early as September 2005, residents of Section 5 in PJ had written to the then Mayor of KL raising concerns about proposed development at Bukit Gasing (KL side). Numerous other letters and petitions were sent to DBKL and FT Ministry. Meetings were held with senior officers of DBKL and FT Ministry since 2005. Letters were written to the former Prime Minister. Two previous Mayors of KL even gave categorical assurances that no development would be allowed on Bukit Gasing.
Despite all the above, on 31 December 2007, DBKL issued letters to residents opposing the proposed development that their request of public hearing will not be entertained. As a result, concerned residents had no choice but to file an application for Judicial Review of DBKL’s decision. Subsequent inter-parte hearings on the application revealed that DBKL was not merely denying residents their rights to a public hearing. DBKL had in fact given certain approvals to the developer whilst presenting a facade of listening to the residents’ safety concerns and paying lip service to application of building regulations to development applications.
DBKL had presented developer’s application for sub-division of land as an administrative approval that landowners are entitled to. Yet, that approval seem to be the basis that approvals for erecting hoardings and earthworks were given, almost as an administrative process. Residents’ request for a copy of the approval of sub-division of land received no responses.
Those that had been monitoring the news on Bukit Gasing would have noted the farce of the Deputy FT Minister having been told that no development orders were given whilst the Director of Planning DBKL said that DOs had been given in stages. How did the Director of Planning justify approving earthworks on steep hill slopes when the Federal Town and Country Planning Department’s “Total Planning Guidelines” 1997 (2nd edition, 2001) prohibits development on hill slopes greater than 25 degrees gradient? The reason for this is to ensure the safety of residents. Almost 50% of the hill slopes of the proposed development are above 25 degrees gradient, a figure submitted by the developer.
The High Court was initially scheduled to announce its decision on leave to proceed with the residents’ application for Judicial Review on 20th February 2009. It seems events are such that 3 postponements had to be issued at short notices by the High Court. “D Day” is now set for Monday, 13 April 2009 at 2:30pm.
So, will the case of Bukit Gasing’s request for Judicial Review in its fight against development on Bukit Gasing be “a bridge too far”? We hope not, if the case of the Former Perak Mentri Besar Datuk Seri Mohammad Nizar Jamaluddin is to be used as the most recent bench mark. Our solicitors had presented a very strong case to demonstrate that application for Judicial Review is neither frivolous nor vexatious.
Whilst the Allied Forces may have failed in the setting of “A Bridge Too Far”, their challenge on that front contributed eventually to the full liberation of Holland in May 1945.
Our country is now under a new regime, that of our “1Malaysia, People First, Performance Now” Prime Minister. Will the new FT Minister and Mayor of KL realize that too many have suffered from inappropriate and unsafe hillside and hill slope developments? Will they act now in obedience to the former PM and our new PM who had both called for a ban on hillside development?
The people are watching and waiting.
JAC for Bukit Gasing.
On the 17th March, 2008, an ex-parte leave for Judicial Review application by 108 residents affected by proposed development at Bukit Gasing (KL side) was granted. Application for Judicial Review was to quash DBKL’s decision not to grant a public hearing on the proposed development on steep hill slopes of Bukit Gasing. Bukit Gasing (both PJ and KL sides) have had a history of unstable geology. Residents in the area are fearful of safety for both their lives and properties. The existence of a 23 million litre reservoir right next to the proposed development was given scant attention by DBKL.
Twelve visits to the High Court at KL, covered interim stop order on DBKL for approval of hoarding by the developer, Gasing Meridian Sdn. Bhd. (GMSB) and inter-parte hearings between applicants, DBKL and GMSB took a year. High Court was supposed to deliver its decision on leave to proceed with the Judicial Review on 20th February 2009. However, a last minute rescheduling was made by the High Court. Decision day is now for Friday, 10th April at KL High Court Complex (Rayuan & Kuasa-Kuasa Khas -RKK 1, Level 3), commencing 2:45pm (Updated)
In the course of the hearings, we found that despite many assurances by DBKL that residents’ fears and request for information would be addressed, DBKL had not complied with planning regulations. Sub-division of land approval presented as an administrative approval, laid the basis for development orders to erect hoardings and earthworks. Even the Deputy FT Minister, was deceived by DBKL planning department. See => https://savebukitgasing.wordpress.com/2008/04/
Despite the Bukit Antarabangsa disaster and directive from the PM and DPM, DBKL continues to avoid coming clean in conceding that development by GMSB on Bukit Gasing is untenable. Almost 50% of hill slopes on proposed development are on greater than 25 degrees gradient, with Bukit Gasing known for having landslides. The most significant and recent was at Taman Hutan Pendidikan (PJ Bukit Gasing forest reserve) in April 2008. DBKL failed to comply with the Federal Town and Country Planning Department’s “Total Planning Guidelines” 1997 (2nd edition, 2001) in approving GMSB’s development – Sanctuary Ridge.
Under the Draft KL City Plan, DBKL plans to reduce the Bukit Gasing green areas under its control by 52%. DBKL actions so far makes a mockery of the National Physical Plan. We can only hope that the High Court will proceed with a Judicial Review of DBKL’s action and that good governance and proper compliance with the country’s planning regulations will apply to DBKL. Let Kuala Lumpur cease to be a third world city hall.
Please do come to support “D Day” at the High Court on Friday, 10th April at KL High Court Complex (Rayuan & Kuasa-Kuasa Khas -RKK 1, Level 3), commencing 2:45pm (Updated)
Some links worth reading:
Gary Yeoh- JAC for Bukit Gasing.