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A small group of TGI’s KL Residents & Maxwell Tower met up today & decision made to PROTEST on DBKL’s new proposal to increase the density of the “now” proposed 149 units villa hill-slope development fr 9 to 19 people per acre:
-safety of the hill-slope (landslides occurances)
– higher density (higher volume of traffic) on all roads leading to & from the development area.
NOTE: All or Any residents staying 200M from the development HAS THE RIGHT to protest. Its just a protest & would not have any judicial relevance in order for DBKL to call for a Public Hearing to address the matter accordingly!
We do need residents’ signatures (in numbers) & I do trust ALL residents will protest together.
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.
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.
Bukit Gasing – 3, May 2013
The KL High Court’s decision on 2nd May 2013 to allow the developer, Gasing Meridian Sdn Bhd, to seek damages from the petitioners of Bukit Gasing residents is a very sad day for concerned citizens of this country. The residents sought a judicial review for the Mayor of DBKL to grant us a public hearing to alleviate our fears for the lives and safety of the residents in the surrounding area. For the residents efforts, the developer is asking for damages, which in the residents’ view, are unfair and unjustified as this is a public interest case.. The residents have no choice but to appeal the court’s decision.
In this age where citizens have to be concerned about the environment and the consequence of development, as a fundamental right to live in an environment which does not endanger their right to a home or worried of losing their right to a home, this decision, in a sense is, a denial of their fundamental right. Hereafter, it will deprive concerned citizens from seeking remedy in the Courts of Justice and give the developers special rights. This is against the constitution because there is no equality of rights between developers and citizens. The role of the legal system is of great public concern. The public needs to know: today is our homes, tomorrow it will be theirs.
The coming Election is of utmost importance to protect our homes and the right to live in a safe environment. We need to change the laws, and only a Government concerned for the people can.
Joint Action Committee for Bukit Gasing
Posted on 29 January 2013 – 08:38pm
Last updated on 30 January 2013 – 12:31am
EVERY time it rains, colleagues in the office get phone calls from those staying around Bukit Gasing in Petaling Jaya. Most of us are familiar with the callers. It’s either erosion of parts of the hill or fear of landslides.
Speculation or otherwise, clearing hillslopes and building on them always invite public scrutiny and inevitably, bad news. Even the slightest trace of gravel on the road is enough to prompt calls but as a matter of fact, if you see bare slopes of the hill being washed down, what appears to be unfounded, becomes founded.
As this column is being written, there’s a visit to the area by the local MP and other party officials.
Despite sustained opposition from residents and environmentalists since 2005, the developer Gasing Meridian Sdn Bhd began earthworks on the Sanctuary Ridge Kuala Lumpur City project two years ago.
It had appointed consultant Ikram Engineering Services Sdn Bhd to monitor the construction of 69 bungalows on the 15ha land, which is supposed to put in place mitigation measures to ensure slope stability.
Kuala Lumpur City Hall (DBKL) admitted it could do nothing to stop the development in Bukit Gasing because doing so would require buying the land out of public funds.
Mayor Datuk Ahmad Phesal Talib was quoted as saying that DBKL had initially opposed the project, but now has no choice but to abide by a court order.
“(The developer) Gasing Meridian Sdn Bhd has already won the court case, how can we stop it?” he asked.
“Now we have to let Gasing Meridian to execute the project but with precautions. If we try to stop them we have to issue a notice of purchase.
“Who is buying? The public.”
Ahmad Phesal is echoing his predecessor, Tan Sri Ahmad Fuad Ismail who said: “The land belongs to the developer and DBKL would have to spend RM135 million if it were to acquire the land to gazette as a green lung.”
He said DBKL had already applied to gazette the neighbouring 52.6ha public land as a green lung in December 2010.
Ahmad Phesal is right and wrong. He’s right in the sense that the developer won a court case. Wrong in the sense that he does not want to admit that DBKL has become its own victim after amending the planning laws to suit its needs and to silence residents who wanted to express their views on safety.
DBKL moved the goalposts or changed the law after the then Supreme Court ruled against it in 1992 in the case of Datin Azizah Abdul Ghani v Dewan Bandaraya Kuala Lumpur & Others over its refusal to not allow her to take part in the planning decision making process.
The rules had provided that upon receipt of any application for planning permission, DBKL should inform the registered proprietors of the land adjoining the land to which the application relates, to enable them to exercise their right to object to the granting of planning permission.
Azizah, as an adjoining neighbour applied for an order of certiorari to quash the decision of the mayor on the grounds that she was never given an opportunity to object, since she never received the DBKL notice calling for objections.
In 1994, DBKL changed the law and the right to a public hearing was narrowed down to two limbs – if there is a change in land use and if there is an increase in residential density.
This, in short, DBKL used its unfettered powers to amend the laws and now finds itself in this predicament. If those living in Gasing Hill had been allowed to present their case vis-à-vis safety, the mayor and his team would have had some cause not to issue the development order.
Today, the DBKL has discovered that its hands and feet have been bound; their mouths and ears have been stuffed; and they have no authority to listen to the people.
They have belatedly discovered that they had used a sledgehammer to swat a fly and in the process destroyed the basic principle of the right to be heard.
Will DBKL reinstate its laws which will be consistent with the Town and Country Planning Act which governs the rest of the country? Will it learn from its mistakes? How can it happen when there are 3,000 development projects under its jurisdiction and that’s plenty of money floating around?
R. Nadeswaran has nothing against developers or development which does not threaten the safety of those living in the neighbourhood. Comments: firstname.lastname@example.org
KUALA LUMPUR: The housing project at Bukit Gasing did not violate safety requirements imposed by KL City Hall, said KL Mayor Datuk Ahmad Phesal Talib.
He said Sanctuary Ridge Kuala Lumpur City developer Gasing Meridian Sdn Bhd had abided by conditions stipulated for the hillslope project by cutting the slopes in stages and building proper drainage systems for the current rainy season.
“Officers and technicians are at the side every day to inspect the construction and ensure the process is carried out smoothly as it is a highly sensitive area,” he told reporters after visiting the site yesterday.
Ahmad was responding to concerns raised by the Bukit Gasing Joint Action Committee on Monday that landslips may occur.
Bukit Gasing Joint Action Committee member Gary Yeoh had said the residents feared that the cutting of the steep hill was not safe, and may have dangerous consequences on the neighbourhood.
He also called on City Hall to hold a public hearing for the residents and assure them that the development is safe.
Gasing Meridian Sdn Bhd managing director Kenneth Tan, meanwhile, explained that the plastic sheets that residents see during the construction were put up to deter rainwater from seeping into the soil and flow out during the rain.
“When we build the slopes, we also install berms and berm drains to allow water from the surface to flow to the silt trap that we set up at the southeast corner of the construction site,” he said.
KUALA LUMPUR CITY HALL (DBKL) will stop the project to build 69 bungalow units on the slope of Bukit Gasing near Kampung Pantai Dalam here, if the developer fails to follow procedures issued by the Malaysian Institute of Public Works (IKRAM).
Kuala Lumpur Mayor Datuk Ahmad Phesal Talib said City Hall would monitor the development and so far there were several complaints from the residents claiming that there had been landslides and air pollution due to the earth works being carried out.
“There will be problems if we ask them to postpone the project. What we want now is for them to carry out their work more seriously,” he told reporters during a visit to the project site, here yesterday.
He was commenting on news report yesterday where the residents there claimed there was a landslide on the slope yesterday morning due to the heavy rain currently.
They also claimed that if the project by Gasing Meridien Sdn Bhd were to be continued, a landslide like the one in Bukit Antarabangsa in 2008 could be repeated. — Bernama
November 5, 2012 – With the recent week of heavy rain, we were informed on Sunday evening that landslips have occurred again in the same area of Bukit Gasing that was recorded here in March of this year. In March, DBKL had claimed to the press that there was no real landslips and what we saw then was the developer making repairs on the earthworks.
As can be seen from the photos, diggers are hard at work clearing access road into Bukit Gasing. Re-sculpturing of the hill had to stop whilst dozens of lorries line up along the road awaiting to clear away fallen earth from the steep hill slopes.
As the diggers and lorries frantically work away to re-open the roads for more re-sculpturing of Bukit Gasing, residents can only pray that the accelerated re-sculpturing of the hill will not bring disaster and deaths into their neighbourhood. The developer seem to have been working 7 days a week since the Federal court ruled against the residents of Bukit Gasing.
Meanwhile, are we to believe that the frantic and massive re-sculpturing is not earthworks by trail and error? Is DBKL taking note of the massive earthworks and potential inadequacies of works being carried out? Will it again be a case of “Acts of God” should deaths occur from such “carefully done earthworks” whilst a subsequent committee of inquiry discovers that no one can and should be held liable?
JAC for Bukit Gasing