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Please be informed that the scheduled leave hearing for our appeal to Federal Court on the matter of High Court award of damages assessment has been cancelled.
Federal Court is in the process of re-scheduling the hearing.
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
Residents and supporters of Save Bukit Gasing will be praying that Justice will prevail tomorrow at the Court of Appeal.
The High Court granted the developer the right for assessment of damages against applicants to Judicial Review in May 2013. The applicants are appealing against this High Court decision. The Court of Appeal decision tomorrow will have significant implications to the general public.
Judicial Review is the means for the public seeking review of our authorities actions. If other parties of Judicial Review case can then seek damages, it could severely affect the public’s ability to seek Justice.
We hope that the Court of Appeal will take into consideration a previous attempt to sue for damages after Judicial Review relating to development at Bukit Gasing back in the 90s. Click to read the judgement. Then pray with the residents.
Those of you that wish to support this hearing should be at the Court of Appeal in Palace of Justice, Presint 3, Putrajaya for about 9:30am. Check for Ramachandran Appalanaidu & 107 yang lain Vs DBKL/Gasing Meridian (R1-25-38-2008). Click “Here” for location of Palace of Justice at Putrajaya.
Yet again, development on steep hill slopes in Kuala Lumpur has proven to be disastrous. This time, it seem to have taken 20 yrs… given the retention walls were first built in 1992 according to the Mayor of KL.
From the various press reports, one might believe that safety of the residents adjacent to steep hill slope developments are of concern to the authorities of Kuala Lumpur. They should sleep easy when we have monsoon rains as like now.
Let’s review what the residents next to steep hill slope developments have observed just this year.
In March of this year, a landslip was recorded in this blog. For DBKL, there was no landslip, merely repairs to earthworks.
Also during March, landslides and floods were recorded. Was there urgency to enforce safety regulations and alleviate the frustrations of KL residents by the Minister of FT and Urban Wellbeing?
What this blog did not record out of frustration was a further landslip in May this year in the same area as the landslip in March. Yet, all the Mayor of KL could say now is that if there is a breach of safety regulations, a stop order will be issued.
This blog recorded the landslip that occurred over last weekend. The photos are here to be seen. Is it possible that residents were having delusions of landslips when the developer was merely being diligent in covering the steep hill slopes that they cut to deter rain from seeping into the soil? Why only after the events captured here on this blog? Yes, one does need to put thinking cap on here.
Are plastic sheeting now a DBKL approved method as a safety regulation? One might think it is as the Mayor claims no safety regulation has been breached.
Frankly, we don’t feel we want a Medan Damansara incident to have the authorities review and provide reassurance of their care for our well being.
If the Mayor of KL is sincere, please advise us what the safety regulations are and what the “IKRAM” (or the DBKL daily monitoring) standards are to make the development safe. This could all be done transparently in a public hearing.
Highland Towers collapsed because of steep hill slope development next to it. It did not fall because of the towers themselves were unsafe.
We are not the only residents near steep hill slopes fearing for their safety. Do read the Star article of 24th October 2012 . The fears of Bukit Bandaraya, Bangsar residents are just as real.
Let’s not forget the plight of the resident in Section 10 of Wangsa Majo either.
Please Mr. Mayor, we can’t all be deluded.. or can we?
PS: Do click the highlighted links to read articles related to this blogpost.
JAC for Bukit Gasing.
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.
The FT Minister, Datuk Raja Nong Chik Raja Zainal Abidin, nonchalantly stated over the weekend that Bukit Gasing in Lembah Pantai will be changed to Bukit Kerinchi.
See report from The Star report on Sunday 11th March 2012
Without consultation with the public, the Federal Government is going to wipe out Bukit Gasing from Kuala Lumpur. Is this an attempt to deceive Malaysians? Consider the following:
Bukit Gasing KL-side is understood to cover 115 hectares and before the drawing of Petaling Jaya and Kuala Lumpur boundary, was enjoyed and remembered by many as Bukit Gasing forests. In fact, Bukit Gasing is a stretch of hills in Petaling Jaya into KL and the proposed Sanctuary Ridge is on Bukit Gasing (KL-side).
Is this a precursor to making people forget about promises to gazetted Bukit Gasing forests under jurisdiction of mayor of Kuala Lumpur? For at least 10 years, mayors of Kuala Lumpur have been promising to make parts of Bukit Gasing a forest reserve. Somehow it’s still to become fact. On top of this, only about 45% of Bukit Gasing under DBKL jurisdiction is being proposed for gazetting.
Some cynics (like me) would wonder if the nonchalant, Datuk Raja Nong Chik’s name change proposal is to boost the attractiveness of approved developments in Bukit Gasing area so as to disassociate current concerns about the lack of urgency by Federal Territory Ministry and DBKL interest in preserving the last potential green lung for Kuala Lumpur. There may be environmentally conscious investors that could be put off?
Perhaps it’s also about dissociating Bukit Gasing from the efforts of Save Bukit Gasing to highlight the fear of residents for their safety because of developments at Bukit Gasing. Is it also about our highlighting recent problems with earthworks at Bukit Gasing? See recent posts.
Does anyone remember Kampong Kerinchi? If you click the link, it’s now referred to as Bangsar South. Until 2005, some 60 acres of the land was Kampong Kerinchi. So, where is Kampong Kerinchi to DBKL?
Just click the Google Map for Bukit Kerinchi, you will have to zoom in and ensure the marked balloons stay centre of page. What do you see? A gradual disappearance of Bukit Kerinchi, encroached by more and more developments? Well, perhaps it’s a warning that a name change could spell the demise of Bukit Gasing if Federal Territory Ministry and DBKL were to be given a free hand.
We have not been given a public hearing by DBKL to understand why development on the steep hill slopes of Bukit Gasing (soon to be called Bukit Kerinchi?) is safe. We, mere mortals, are apparently overly distrusting of the diligence of DBKL’s approval process. Maybe we need to accept that Medan Damansara landslide was just an unfortunate incidence outside the norm of DBKL diligence.
However, I hope many of you will be upset at the latest proposition by Datuk Raja Nong Chik. If you are, please raise your concerns to your elected representative and petition DBKL against the move. You can also help by sending this link to your friends.
Gary Yeoh – JAC for Bukit Gasing.
As one can read from the Bernama report today (see article below), it’s a disappointing day for residents and friends of Bukit Gasing.
It seems that owners of properties in Petaling Jaya (or for that matter anywhere else in the states of Peninsular Malaysia) would have the opportunity to object to a proposed development as provided for under the Town & Country Planning Act as amended in 2001, the same may not apply to residents in Federal Territories of KL.
Isn’t it puzzling that whilst a property owner in Petaling Jaya will have the right to object to a proposed development under MBPJ jurisdiction, he/she will not have the same rights if the proposed development falls within DBKL jurisdiction as his/her right to object will be limited by other rules?
The community will need time to review Court of Appeal decision. It has been a very puzzling day for residents and friends of Save Bukit Gasing.
Do come back for updates. We may have lost in the short-term, but our determination to consider options will not diminish.
JAC for Bukit Gasing.
Good to have Malaysiakini TV providing a record of our Support Day.
Click Malaysiakini TV to view
In response to concerns of various residents living in the vicinity of proposed development at Bukit Gasing (KL-side), Support Day was organized to allow residents and friends to remind DBKL that their concerns have not gone away. The earthworks on the steep hill slopes of Bukit Gasing continue to worry residents. Given the landslides in Medan Damansara, (where DBKL initially approved development of 21 bungalows) and tragic loss of lives in Bukit Antarabangsa, we have every reason to be worried.
We estimated that more than 150 people came and stood together to show their concerns. Many others came to sign on the banner provided and had to leave. It was especially good to see many youths at the event. No doubt they came wondering why DBKL supports development on Bukit Gasing when there is already a fast diminish of green space.
We are pleased that YB Nurrul Izzah (MP Pantai Dalam), YB Hee Loy Sian (MP PJ Selatan) and representatives of our late Edward Lee (Adun for Bukit Gasing) came to stand with the ressidents and friends of Bukit Gasing. Similarly, we note the presences of TV3 and many media reporters. It’s good that they have also come to give coverage of the day.
Sadly, DBKL and Federal Territiory Minister continue to ignore our concerns. One wonders where is their People First policy. Why is it so difficult for them to acknowledge and demonstrate they care for residents’ fear for safety? As a nation, we have regularly seen the deadly results of landslides caused by developments on steep hill slopes and lack of stringent conditions in such development approvals. Maintenance and monitoring of hill slope developments drainage, roads and slopes don’t seem to exist . Whilst technology may exist for safe hill slope development, we have yet to understand how our authorities are objectively and transparently ensuring such developments are safe.
On Tuesday, 6th of March 2012, our appeal against High Court’s rejection of our Judicial Review will be heard at Court of Appeal in Putrajaya. Despite the 4 years of our seeking the courts’ review of DBKL’s decision not to give us a public hearing, residents are still prepared to battle against the lack of concern and transparency shown by DBKL. Sometimes many of us feel powerless against the might of DBKL, but we know we have to continue to voice our concerns.
We voice our concerns not just for ourselves but for our future generations. None of us should live in fear. Hills and forests in such an urbanized area as KL are important legacies for the future. Bukit Gasing under the jurisdiction of DBKL should be extensively preserved for future generations as a green lung and recreation area. DBKL has no credibility when it puts development for multi-millionaire homes above the rights of general public for a liveable and sustainable environment for the public.
Now, view the pictures for the day. Let’s keep fighting the good fight.
JAC for Bukit Gasing.