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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.
At yesterday’s meeting of applicants to Judicial Review on DBKL’s denial of a public hearing to Bukit Gasing residents, a unanimous decision was reach to proceed with an appeal to the Federal Court.
Our lawyers, Sivarasa Rasiah and Balbir Singh were on hand to help explain the complexity of our legal processes. Many were puzzled by the many hearings over the last 4 years of Judicial Review. Frustrations were voiced by many at how their very justifiable fears for safety did not result in achieving a public hearing or reasonable response from DBKL. Recent earthworks’ landslips in the Gasing Meridian site brought afresh the dangers the development will bring to the community. Concerns were raised about the impact of development so close to the 23 million liter reservoir sited in between Siva Temple and the development (Sanctuary Ridge) by Gasing Meridian.
By the unanimous decision of the meeting to appeal for justice to the highest court of our country, we can now move on united and ready to argue our case.
We urge all our friends to support our cause. Somehow, we need to raise public awareness of how approvals on steep hill slopes in an area prone to landslides could be given without a public hearing. We also need to highlight to the public how KL residents do not have the same rights as the rest of Peninsular Malaysia when it comes to the right to object to development at their door steps.
Please support us in anyway you can. Do come back to visit this site for updates on our fight for justice and view the various posting of our fight over the years.
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.
PUTRAJAYA, March 6 (Bernama) — One hundred and eight Bukit Gasing residents today lost their appeal at the Court of Appeal here to set aside the High Court”s dismissal of their judicial review application to challenge the issuance of a development order by the Kuala Lumpur mayor for a hill slope project in that area.
A three-member panel chaired by Court of Appeal judge Datuk Ramly Ali delivered a 2-1 majority verdict, with Justices Ramly and Datuk Zaharah Ibrahim dismissing the residents” appeal and Justice Datuk Jeffrey Tan Kok Wha dissenting.
Justice Zaharah, who handed down the decision, had disagreed with the submission by the residents” lawyer R.Sivarasa that the amended Town and Country Planning Act 1976 which accorded a right to a public objection hearing to residents extended to the Federal Territory.
Instead, she said the law that applied to the Federal Territory was the Federal Territory (Planning) Act 1982.
This law only accords the right of public hearing when there are changes on the use of the land or an increase in population density of the area.
In a dissenting decision, Justice Tan said there was a procedural failure on the part of the Kuala Lumpur City Hall in not according a public hearing to the residents prior to issuing the development order as required under the Town and Country Planning Act.
The 108 residents filed the application at the Kuala Lumpur High Court for judicial review in 2008 to quash the development order by the Kuala Lumpur mayor pertaining to the Sanctuary Ridge Kuala Lumpur City project on a 15.52ha site in Bukit Gasing.
The mayor, in an order dated Oct 2, 2007 issued to Gasing Meridian Sdn Bhd (GMSB), allowed the developer to carry out earth works and sub-divisions in the area.
GMSB is planning to build 70 bungalows on the site which it claimed was privately-owned land and had never been part of a green lung or a natural forest.
In their judicial review application, the residents claimed that the mayor had failed to take into account that they had the right under Common Law to be given due notice and a chance to voice their opinion in the decision-making process.
They took the matter up for appeal to the Court of Appeal after the High Court on Sept 6 2010, rejected their judicial review application.
One of the Bukit Gasing Joint Action Committee members, Mohamed Kamar Mohamed, said they were disappointed with the decision.
He said the residents would hold a meeting to decide whether or not to bring their case to the Federal Court.
Good to have Malaysiakini TV providing a record of our Support Day.
Click Malaysiakini TV to view
Our struggle goes on to prevent the development on Bukit Gasing by Gasing Meridian Sdn Bhd. The struggle has gone on for a very long time. Initially, Gasing Meridian took objection to the High Court granting us ” leave ” for our case to be heard. At the hearing in the High Court, Kuala Lumpur Gasing Meridian lost. They then appealed to the Court of Appeal and later to the Federal Court and lost at both levels.
Subsequently, actual hearings of the merits of our case at High Court in were held in June and July 2010. The High Court ruled against us on 6th September 2010. We appealed against the High Court ruling to the Court of Appeal.
At the hearing in the Court of Appeal held on 12th December, 2011, Gasing Meridian wanted to include a new submission into our case, claiming that 18 purchasers who had allegedly had bought lots from them and Court of Appeal has to consider this new fact . This issue is fixed for hearing at the Court of Appeal, Putrajaya this Thursday, 9th February 2012.
The merits of our appeal proper will be heard by the Cort of Appeal, Putrajaya on Tuesday, 6th March 2012.
Although the appeal proper has not been heard as yet, Gasing Meridian has already commenced cutting down trees and and making roads on Bukit Gasing. You can see the development at the beginning of Pantai Dalam area.
We appreciate all the support residents have given to the struggle to prevent the development of Bukit Gasing. We must continue to make every effort. We appeal to all to attend the two hearings at the Court of Appeal. Please attend to show your support.
JAC for Bukit Gasing.
After many Court hearings, we lost our case at the High Court in September 2010. Our appeal to the Court of Appeal is fixed for hearing on Monday, 12th December, 2011. However, the Developer has already started clearing the trees near Pantai Dalam.
We urge you to attend the Court of Appeal hearing to support our case at 9:00am. The Court of Appeal is at Istana Kehakiman, Precint 3, Putrajaya. Condo and Gasing Indah residents are requested to car pool for transport to the Court of Appeal.
Joint Action Committee for Bukit Gasing (made up of owners and residents from Fraser, Cameron and Maxwell Towers, and Gasing Indah)
This is Part 2 of report on the Court of Appeal hearing on Wednesday, 11th November 2009
Bukit Gasing response as Respondent to the appeals
Legal counsel for Bukit Gasing, YB Sivarasa Rasiah (supported by Mr. Derek Fernandez), opened his arguments by bringing the judges attention to the site of the proposed building. Explaining that 3 condos (Fraser, Cameron and Maxwell Towers, total 6 block), houses in Taman Gasing Indah are all in close proximity to the proposed development. In addition, there is a 23 million litre reservoir with a 2 meter diameter pipeline along boundary of the proposed development. Proposed development will be on steep hill slopes.
The chronology of events was made to the court. He highlighted that the application for the 1st judicial review was submitted when it became clear that DBKL would ignore their concern for safety and had rejected a public hearing via the hand delivered letter of 31.1012.2007 from DBKL. This was despite the impression given at the 14.11.2007 meeting with Director of Planning KL (Tuan Haji Mahadi) that DBKL would respond to petitions for a public hearing. He highlighted that minutes of the 14.11.2007 (dated 21.11.2007) was provided to DBKL with request for detail of approval for sub-division of land. However, DBKL did not respond to repeated request for information.
YB Sivarasa pointed out that the High Court, Honourable Judge Madam Lau Bee Lan, had given details of arguments by the parties and her reasons for granting extension of time in her written judgement. The residents only became aware of a DO (in the form of approval of sub-division of land on 2.10.2007) in affidavits from the developer dated 15.4.2008. He stated that residents could not file an application on verbal communication without having details.
During exchanges between counsels and judges, the Honourable Datin Paduka Zaleha commented that the residents did not know a DO was given at the time suggested by the appellants.
YB Sivarasa also confirmed his withdrawal of cross appeal against the dismissal of the 2nd judicial review on the DOs for Hoarding and Earthworks by the High Court. This was in the context that the Honourable Madam Lau Bee Lan’s written judgement had stated that these two DOs are consequential and purely administrative, resulting from DO for sub-division of land.
With regard to locus standi, YB Sivarasa, highlighted various case histories and that the reasons for application for 1st judicial review are not “frivolous or vexatious”. He pointed out the High Court had considered the arguments presented at the inter partes hearing before grant of leave for judicial review.
Note: The Honourable Judge Madam Lau Bee Lan’s written judgement had highlighted the contention between the parties on whether the Town and Country Planning (Amendment) Act 2001 (Act 1129) or the FT Planning Act (1982) with “1994 Rules” should apply. She concluded these are arguable issues.
YB Sivarasa told the court that numerous guidelines in the Kuala Lumpur Structure Plan (KLSP) were breached in DBKL’s approval of DO to developer. In particular, Policy EN 6 that states “City Hall shall not permit development on hillside with slope that exceeds the allowable level, rules and regulations set by the Federal Government”. The Total Planning and Development Guidelines (2nd Edition) by Ministry of Housing and Local Government (Department of Town and Country Planning, Peninsular Malaysia) states under “Steep Slope Areas” that, “Construction is not permitted in areas on steep slopes (exceeding 25 degrees) “. In addition, there are common law reasons which were detailed in his submission in response to the appeals.
He highlighted that the Appellants litigating the issues extension of time for leave and locus standi militate against views of Chief Justice in the recent Federal Court judgement of “Majilis Agama Islam Selangor v. Bong Boon Chuen.
In closing responses, DBKL stated that the Kuala Lumpur Structure Plan is not a legal binding requirement when considering the development orders. Counsel for the developer reiterated the key points he had made.
The Honourable Datin Paduka Zaleha, after consulting the other judges moved to adjourn the hearing and fixed 20th November 2009 (coming Friday) at 10:00am to deliver the court’s decision on the appeals. The hearing ended well after 5:00pm.
Note: The “1994 Rules” is an amendment to the Planning (Development) Rules 1970, made by DBKL (under powers conferred by s 64 of FT Planning Act) after DBKL lost the case between of Datin Azizah v. Dewan Bandaraya Kuala Lumpur for failure to notify and hear objections from residents before granting development order.
JAC for Bukit Gasing
The appeals filed by DBKL and developer, Gasing Meridian Sdn Bhd (GMSB) against High Court Judge Madam Lau Bee Lan’s decision on 24th April, 2009 to: i) allow extension o f time for judicial review application; and, ii) grant of leave on judicial review to quash the development ordered issued by DBKL for sub-division of land dated 2nd October 2007, commenced on Wednesday, 11.11.2009 morning. The Court of Appeal judges were, Honourable Datuk Nihrumala Segara, Honourable Datin Paduka Zaleha bt. Zahari and Honourable Dato’ Mohd. Hishamudin bin Haji Mohd. Yunus
Appellant – DBKL reasons for appeal
Counsel for DBKL, Mr Romesh Abraham, spent more than of 2 hours expounding the view that the Honourable Judge Madam Lau Bee Lan had erred in her decisions.
He argued that extension of time should not have been given as the judicial review was filed outside the 40 days period required for consideration. The meeting that DBKL held with residents on 14.11.2007 should be the start date for time consideration for judicial review to quash the approval of Development Order(DO) for sub-division of land (dated 2.10.2007) to GMSB.
DBKL had told Bukit Gasing residents that no DO had been issued at the meeting and approval was only an administrative approval for sub-division of land. Minutes of the meeting (dated 21.11.2007) by the JAC for Bukit Gasing to DBKL, recorded residents’ understanding that no DO was issued and sub-division of land was an administrative approval. DBKL acknowledged that residents had requested copy of the sub-division of land approval and no reply had been given.
Honourable Dato’ Mohd. Hishamudin questioned why DBKL did not reply to the residents’ requests. The lawyer responded that the Federal Territory Planning Act (1982) does not require DBKL to respond to residents’ request. Despite a number of attempts by the judge for an answer, he stated that the letter (hand delivered) dated 31.12.2007 to residents that no public hearing would be held was the only required response by DBKL. Honourable Datin Paduka Zaleha commented then that residents were given the impression that no DO had been issued. Notwithstanding the exchanges, DBKL maintained that the date of DBKL verbal communication of sub-division of land approval (i.e. on 14.11.2007)had to be the basis for the Honourable Judge Madam Lau Bee Lan’s assessment on limitation of time for judicial review. The Honourable Dato’ Mohd. Hishamudin then noticed that “first communicated” on 14.11.2009 date submitted by DBKL for appeal hearing could not be right.
On the grant of leave for judicial review to quash the DO issued by DBKL for sub-division of land dated 2.10.2007, DBKL again exerted its view that the Federal Territory Planning Act (1982) and “1994 Rules” should be the only basis for the Honourable Judge Madam Lau Bee Lan’s assessment of locus standi threshold, not the substantive nature of issues. The Honourable Judge Madam Lau Bee Lan’s assessment that substantive measure for locus standi had been met.
Note: The ‘1994 Rules” is the basis DBKL uses to justify that requirement for public hearing will only apply when there is an increase in density or change of use. FT Planning Act (1982) had included “material consideration” by the Mayor in considering planning applications that “1994 Rules” now removes.
Appellant – GMSB reasons for appeal
After lunch, Dato RR Sethu, representing GMSB, argued that the issue of time is crucial. In essence, the application was made “out of time”. He referred to a number of case examples at length to make his point. Significantly, he argues that planning permission for the sub-division of land given by DBKL to GMSB is a valuable right and must be protected by rules. From his perspective, GMSB must have the right to build on the land and the “Bangunan” land title given in 1977 must be upheld.
He further argued that the applicants for judicial review had no locus standi. Again, he reiterated that: i) under the “1994 Rules”, the High Court should have rejected the application; and ii) the Town and Country Planning (Amendment) Act 2001 (Act 1129) is not applicable to Kuala Lumpur. His view was that only the FT Planning Act together with “1994 Rules” should apply in Kuala Lumpur.
Honourable Dato’ Mohd. Hishamudin queried where in the Act 1129 was Kuala Lumpur stated as excluded, when the Act had stated as to cover Peninsular Malaysia. There was some exchanges that this scribe could not follow. However, Dato Sethu maintained that FT Planning Act was never repealed and hence Act 1129 does not apply to Kuala Lumpur.
Please go to Part 2 for Respondent to appeals report.
JAC for Bukit Gasing
Court of Appeal, Putrajaya on Wednesday, 11th November 2009
The appeals filed by DBKL and developer (Gasing Meridian Sdn Bhd) against High Court Judge Madam Lau Bee Lan’s decision on 24th April, 2009 to : i) allow extension o f time for judicial review application; and, ii) grant of leave on judicial review to quash the development ordered issued by DBKL for sub-division of land dated 2nd October 2007, commenced this morning.
It took a greater part of 5 hours for the lawyers to present their arguments today. The lawyers respresenting DBKL and the developer took about 4 hours to expound how the Honourable Judge Madam Lau Bee Lan had erred in making her decisions on 24th April 2009. Mostly, they covered the same grounds as they had done in the 13 months of hearing before.
JAC for Bukit Gasing lawyers , YB Sivarasa Rasiah (supported by Mr. Derek Fernandez on a pro-bono basis) represented robust arguments that the Honourable Judge Madam Lau Bee Lan decisions as in her written judgements presented to Court of Appeal last week (2nd November 2009) should be upheld and pointed out the substantive reasons for her conclusions.
The Appeal Court Judges (3 judges presided) will announce their decision on Friday, 20th November 2009 at 10am.
This is just an interim report to keep readers informed. I hope to have a more detailed report posted in the next couple of days. Please do come back to check for more information that will be posted in coming days.
JAC for Bukit Gasing.