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2013-05-03 TheStar

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

R. Nadeswaran

http://www.thesundaily.my/news/600982

Nades Amend laws with care

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: citizen-nades@thesundaily.com

Despite attempts by DBKL to ignore and deny the dangers of development on the steep hill slopes of Bukit Gasing, we have more landslips to share.

Updated photos on Gasing Meridian earthworks landslips

Save Bukit Gasing  (Sun. 11 Mar 2012)

Grassed over steep slope slipped again in heavy rain (Sun. 11 Mar 2012)

Save Bukit Gasing (Mon. 12 Mar 2012)

Back to using plastic sheeting (Mon. 12 Mar 2012)

Save Bukit Gasing Back (Mon. 12 Mar 2012).

Back to using plastic sheeting (Mon. 12 Mar 2012). See other steep slopes with signs of erosion

SBG (Mon. 12 Mar 2012).

Steep descent of trucks on road tracking to hill peak (Mon. 12 Mar 2012). See steep cutting of slopes on right hand corner

Meanwhile at foot of hill below Siva Temple near to Fraser Towers….

Residents of Fraser Towers have already lodged a complaint with the Engineering Department of MBPJ of the landslip

SBG (Mon. 12 Mar 2012)

Landslip on slope next to the the site of repaired slopes from landslide of 2007 (Mon. 12 Mar 2012)

SBG (Mon. 12 Mar 2012)

Landslip and proximity of the repaired slopes that had seen no maintenance since 2007 (Mon. 12 Mar 2012)

As PJ residents are persona non grata to DBKL, perhaps if you all share these photos widely, it might be picked up by DBKL. After all, a “Focus” page on The Star (Sunday, 11 March 2012) identified landslips as signs of landslide to come and should be reported to DBKL. The page is supported by JKR and division of JKR responsible for slope monitoring. It reported 16 fatalities each in Hulu Langat and Sungai Ruil in 2011 and destruction of 14 homes in the Bukit Antarabangsa 2008 landslide.

PS: According to the article, you can only call 999 if there is a landslide. Otherwise, you need to call the engineering department of your local authority (sic).

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.

 

Bukit Gasing residents' lawyer R.Sivarasa at the press briefing after the Court of Appeal gives its verdict on the appeal against the 15.52 ha hillside development project.

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.

— BERNAMA

http://www.bernama.com.my/bernama/v6/newsindex.php?id=650314

http://www.nst.com.my/latest/bukit-gasing-residents-lose-appeal-1.56555

http://www.malaysiakini.com/news/191275

 

Link to Photos….

 

The article below was sent to a major MSM, but was not published and is put here to record ongoing residents’ concern for public safety.

The saga of Siva Temple and landslides epitomize how our authorities have failed the public in so many ways. Sadly, it’s just one of many examples all over the country where our authorities failed in their duties of implementing proper planning approvals and enforcement of laws. Steep hill slope developments present real and imminent risks to lives. Yet, year after year, we continue to see landslides caused by hill slope developments whilst the authorities continue to bow to hill slope developers’ demand for profit over lives and sustainable environment.

What is often forgotten is that hill slope developments leave in place time bombs that await the unsuspecting public. Highland Towers, Hulu Klang, Medan Damansara, Bukit Antarabangsa and the most recent tragic Ulu Langat orphanage disaster are all ample proof of failure of our authorities in enforcement of laws and regulations.

Siva Temple extensions caused its first landslide in March 2007. Despite the extensions being found to be illegal, it had remained and whatever remedial and risk mitigation works that were supposed to have been put in placed were so lacking that it resulted in a further landslide in January 2011. Warnings by concerned residents to the pending disaster back in 2007 were all in vain.

Whilst residents applaud the efforts of Derek Fernandez (councillor for the area) in ensuring that the exposed slopes are protected against further erosion, it must rest squarely on MBPJ to enforce the law. We wait with baited breath for much more substantial and tangible actions to be taken to right the wrong that has been inflicted against public safety and the beauty of Bukit Gasing.

The Siva Temple landslides should ring alarm bells to the public at how lacking our authorities are in monitoring potential risk zones and the prompt enforcement of laws to protect public safety. We now have to keep our fingers crossed that the “Aprons of Bukit Gasing” will be enough to prevent further landslides and risks to the Syabas pump station whilst MBPJ enforcement officers and Siva Temple committees hold meetings and discussions.

Notwithstanding the above remarks, we thank Derek Fernandez for his assertiveness in ensuring MBPJ acts to prevent the exposed slopes from becoming a mud flow.

As residents facing the threat of development on the steep hill slopes of Bukit Gasing, we continue to be alarm at how Bukit Gasing is reminding us all that we should leave it alone. Will DBKL take note of what is happening? Given the ample signs of instability of exposed slopes and buildings on Bukit Gasing, will DBKL now admit that they have a duty to give us a hearing before development is allowed?

DBKL approved the development of Medan Damansara 21. However, after the landslides and aprons on the steep hill slopes, the development had to reduce number of properties planned from 21 to 16 units for safety reasons. Yet, the developer sued DBKL and the Mayor of DBKL is seeking to settle it out of court. No doubt any payments to the developer will be at the expense of KL ratepayers.

The saga of Siva Temple, Ulu Langat and Medan Damansara landslides are warnings to the public that we can no longer rely on our authorities to do right for the safety of the public. Evidence abounds at how our authorities place developers’ rights over the public’s rights to live without fear of death by slope failures.

Gary Yeoh
JAC for Bukit Gasing

Wed, 08 Sep 2010
  
 

By Teoh El Sen

PETALING JAYA: Lembah Pantai MP Nurul Izzah Anwar is upset with the Kuala Lumpur High Court’s decision yesterday to allow developer Gasing Meridian Sdn Bhd to proceed with the construction of 70 bungalows on the hill slopes of Bukit Gasing. She said the court had “ruled against the people of Bukit Gasing” and that Kuala Lumpur City Hall (DBKL) mayor had broken his “promise” that Bukit Gasing would be gazetted as a forest reserve.

“The world is moving towards a new era of being green by developing sustainable neighbourhoods, yet DBKL has taken a step back by allowing an unscrupulous developer to ransack a pristine green lung that belongs to the people of KL,” said the MP.

“The (previous) mayor (Ab Hakim Borhan) had promised the people that Bukit Gasing would be gazetted as a forest reserve.

“The current mayor (Ahmad Fuad Ismail) said that he would take hillside developments seriously and that he would not agree to the developments of four hills, namely Bukit Gasing, Bukit Nenas, Bukit Tabur and Sungai Besi. Where is the mayor then and where is the mayor now?” she asked.
A tale of two KLs

Nurul Izzah said with the construction of the bungalows, city folks, hikers and joggers, will be forever deprived of a breathing space. And on top of that, the area could face more landslides.

“The consequence of this inaction by DBKL is enormous. Three months ago, a landslide hit the Sri Maha Kaliaman Temple (in Bukit Gasing) where 20 devotees were in the midst of prayers.

“This was in addition to the countless landslides that have occurred there in the past 30 years,” she said, adding that each bungalow would cost between RM2.6 and RM6.3 million.

“Where is sustainable living that DBKL promised the people living in this city? Where are our ministers? Isn’t it time for them to act accordingly? The time to act is now and not later.

“This is a tale of two KLs where the state’s unelected local authority transgresses the rights and interest of those they are supposed to serve. Whose rights and interests are they protecting?” she asked.

Only rich can afford nature’s gift

Nurul Izzah said Bukit Gasing has been likened by World Wildlife Fund (WWF) to a green lung in the middle of an urban jungle.

“The hill has more than 10 hiking tracks. One can still see monkeys and various types of birds. This is an ideal place for people to relax and exercise while enjoying nature’s scenery.

“Families and friends congregate on this hill frequently especially during the weekends. Sadly this panoramic view of KL and PJ will soon be inaccessible to our children,” she said.

“The colorful plants, flowers, and fruits will be diminished among the eyes of the general public and only those who can afford it would be able to access nature’s gift,” she added.

Nurul Izzah said she hoped the residents of Bukit Gasing would appeal against this ruling for the benefit of all those who live in Kuala Lumpur and Petaling Jaya.

“I hope the mayor of KL would remember his pledge to the people. I hope that the developer would develop a conscience and leave this pristine hill untouched. Finally, I hope that the people would continue to voice their support to protect Bukit Gasing.

“We would not benefit most from this fight but rather our children, and the future generations to come that would grow up and appreciate this green space that is left for them,” she said.

Yesterday, High Court judge Aziah Ali dismissed a judicial review application by 108 Bukit Gasing residents to quash the development order to build 70 bungalows at Bukit Gasing.

The development order was issued by the then Kuala Lumpur mayor Ruslin Hassan.

The project, Sanctuary Ridge Kuala Lumpur City, is to be built on a 15.4 ha site in Bukit Gasing.

http://www.freemalaysiatoday.com/fmt-english/news/general/10058-nurul-sees-red-over-courts-un-green-ruling

As many would have read in the MSM, our Judicial Review to compel DBKL to allow us a public hearing and stop Gasing Meridian Sdn Bhd’s proposed development on Bukit Gasing has failed based on the ruling by Judge Aziah bte Ali. It would appear that the judge supports DBKL’s view that the Town & Country Planning (amendment) Act 2001 (that had provided the basis for the whole of peninsular Malaysia,  explicitly including the Federal Territories, to be governed by a common planning regulation) does not apply to KL. The Town & Country Planning Act would have required DBKL to grant us a public hearing.

We, residents affected by the proposed development were only seeking DBKL to allow a public hearing so as to understand how such a development on steep hill slopes (almost 50% of the hill is above 25 degrees gradient) can be safe and not be a “time bomb” for landslides and disasters.  Previous mayors that had understood the dangers presented by the development and would not to allow development on Bukit Gasing. Why did the Mayor of KL of 2007 (Datuk Ab Hakim Borhan) and the current Mayor (Dato’ Ahmad Fuad Ismail) felt that Gasing Meridian’s proposed development is safe in the light of Bukit Antarabangsa, Medan Damansara and the Amanah Raya disasters? Why avoid being transparent on their approval process and hide under legal arguments to avoid public scrutiny?

Judge Aziah bte Ali had delivered her judgement in her chambers and we were not privy to her reasons for supporting DBKL.  Will she publish and make available her full judgement in the next few days as reported by Malaysiakini? Should we give up?  I hope not.

Yes, the communities at Bukit Gasing had been dealt a blow.  However, I am reminded of retired Judge NH Chan’s many articles on flaws in court judgements and his challenges to the current Judiciary. The communities at Bukit Gasing and the general public have to face the question of whether we should demand and fight for deliver of justice in our Nation.

We cannot and should not remain silent. Instead, we must continue the fight to regain our rights to have safe and sustainable developments in our nation.  I hope you readers will help spread our disappointment and perhaps encourage and help us continue our fight.

Gary Yeoh – JAC for Bukit Gasing.

The hearing had been rescheduled to  Wednesday, 14th July for 2:30pm.
 
We really do need more people to be at the court so that the Judiciary is amply warned that our demand for justice is for real. Do spare just the afternoon to come to the court.  If you cannot come, please inform someone you know that might be able to.
 

‘All that is necessary for the triumph of evil is that good men do nothing’
Our silence and inaction has used by the authorities to do much damage to our environment and our rights curtailed.
Now is the time to rise. Let’s us be heard and seen at the High Court.
 

Many thanks and regards

Gary Yeoh

2009/11/20 – NST Online

PUTRAJAYA: Kuala Lumpur City Hall and a developer today failed to prevent 108 Bukit Gasing residents from challenging a development order by the Kuala Lumpur mayor pertaining to a hillslope development project in the area.

Court of Appeal Judge Datuk Paduka Zaleha Zahari and Datuk Mohd Hishamudin Mohd Yunus dismissed KL City Hall’s appeal in a 2-1 majority decision, with Justice K. N. Segara dissenting.

In an oral decision, Justice Zaleha said after going through the submissions of both parties, the applicant’s appeal was dismissed.

KL City Hall and the developer, Gasing Meridian Sdn Bhd (GMSB), are appealing against the High Court decision on April 24, in granting leave for a judicial review to the residents to quash the mayor’s order.

GMSB is the developer involved in the development of Sanctuary Ridge Kuala Lumpur City — a project to build 68 bungalows on a 15.5ha site in Bukit Gasing. – Bernama

http://www.nstp.com.my/Current_News/NST/articles/20091120160740/Article/

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