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BY MAYURI MEI LIN
PETALING JAYA, March 15 — A Bukit Gasing property developer insists that it is entirely within their rights to claim damages from a group of residents who sought a judicial review over a residential development.
Gasing Meridian Sdn Bhd (GMSB) said that it was the judiciary’s decision to award them damages and that as respondents in the lawsuit, they were merely following the letter of the law.
“The courts found that we were entitled to damages. The judicial system is in place for order and justice. It is for the residents to take this matter before the court if they claim that the courts’ decision serves otherwise,” GMSB marketing director Leo Tan told Malay Mail Online in an interview earlier this month.
“Our representative stood up in court, in open court, and said, ‘We reserve the right to damages.’ And they didn’t object to that. So okay, if you don’t object, then we proceed along those lines,” he said, referring to the 103 Bukit Gasing residents who initiated the lawsuit.
Residents in the area have condemned the decision to award the developer damages, saying that this will stifle their freedom of speech and discourage others from having their opinions heard through public forums.
Civil liberties lawyer Syahredzan Johan and Bukit Gasing assemblyman Rajiv Rishyakaran echoed the same sentiment that the residents should not be financially penalised.
The Bukit Gasing residents’ challenge against the developer dates back to 2008, when the group filed for a judicial review to compel the Kuala Lumpur City Hall (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 the required public hearings 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 it 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.
Tan said he was unsure about the amount GMSB will claim from the group of residents as that was a decision for the judges.
“I don’t know, it’s for the courts to decide. We have submitted figures to do with our costs, various other items,” he said.
Tan also defended GSMB’s joining the case as a second respondent citing their right to defend themselves, as they were commercially invested in the case.
“What I understand of the case is when the residents took up the case against DBKL, they asked DBKL to stop proceedings on only one project – our project.
“So essentially, it’s almost akin to having an injunction on us as an individual entity. So we had to intervene. As our legal advisor said, ‘It’s about you and if you don’t intervene then you lose all right to say anything,’” Tan said.
GMSB is the developer behind Sanctuary Ridge, a property development in Bukit Gasing with 70 luxury bungalow lots for sale with prices starting in the millions….
There seem to be so much F**…. and S**…. about in this blighted country of ours that it’s hard to feel that after our success at the Federal Court in March this year, our journey and fight to have our demand for transparency and right to be heard by DBKL will be smooth one. What do I mean by “F**…. and S**….”? Well, let’s have a few examples:“Fog”: What’s the real amount of government subsidies? Treasury or Pemandu (Idris Jala) figures? “Fixed”: Judiciary judgements that defy our ability to comprehend laws and justice. “Fudge”: Was sports gaming license approved or not? Perhaps it’s just when it will be given? “Frog”: “Funded” leaps to “enlightenment” or just the jumping amphibian? “First Lady”: “constitutional” and “cultural” types, take your pick. “Funnies”: go see it in Niamah “FDI”: Hey guys and gals, we are ok… we will be the chosen destination with our NEM.
Now for the S**……“Shafted”: Control licenses all designed for the benefit of common folks “Screwed”: Who or what did it? Only our world class experts will know. “Scam”: In Malaysia? You must be kidding. Where got? “Sodomee II”: Something you conjure up after the first attempt failed. “Scholarships”: Our Gov thinks it should be for studies only in Malaysia to prevent brain drain. “Submarines”: Will only dive in tropical waters after extended trials and made only for Malaysia. “Sultan”: Appears in the word for experts used by our world class authorities i.e. Con-sultan.
There you are, one for each day of the week.
However, the purpose of this entry is to let our readers know that the Judicial Review hearing proper will commence next Wednesday (23rd June 2010) morning, at the KL High Court (Jalan Duta Court Complex, KL). We are praying and hoping that the Judicial Review hearing will be fairly heard and not become another of the F**…. and S**…. examples that we all can conjure up
It still defies our understanding that DBKL, an authority that should be delivering the “People First, Performance Now” policies of our most popular PM, should find it hard to grant us the right to a public hearing to allay our fears that our lives and homes are not at risk in their consideration of application to build homes on unstable and steep hill slopes of Bukit Gasing.
If DBKL is transparent and acting in accordance with the law, why do they withhold information from us and are unwilling to provide any details on their con-sultan’s and ex-pert’s report that supported Gasing Meridian Sdn Bhd’s proposed development on the steep hill slopes of Bukit Gasing? Why would DBKL not provide evidence of the many departmental approvals that were supposed to have been obtained?
Gasing Meridian had not found it commercially viable to proceed with a 2 staged approval process required by DBKL back in 1999 for development of 82 bungalow lots. Gasing Meridian was so upset that they sued the then Mayor of DBKL in October 2000 at the High Court but lost. They further appealed to the Court of Appeal and lost again in December 2003.
Yet, it now seems DBKL’s approval for Sanctuary Ridge (name of the current proposed development on Bukit Gasing) is commercially viable. Has DBKL suddenly found that the hill slopes of Bukit Gasing have changed and no longer required the same stringent conditions that were applied in 1999? Is it because of the booming property market that it is now commercially viable for Gasing Meridian to build on steep hill slopes of Bukit Gasing when they could not before? Is there such a scarcity of mansions with a view that billionaires are lining up to snap up the 71 bungalows lots now on offer?
One of the causes of the Bukit Antarabangsa landslides was attributed to water leaking from water pipes. Along the boundary of the proposed development by Gasing Meridian is a 2 metre diameter water pipe supplying water from a 23 million litre reservoir from the top of Bukit Gasing and next to one of the proposed mansions with a view in Sanctuary Ridge. Steep hill slopes of Bukit Gasing has again and again rebelled against attempts to build on it. They have been featured on this blog.
So, why is DBKL unable to understand our concerns and continue to invoke their powers to ignore us? Will the High Court uphold our rights and bring DBKL to account? Do we have to face the anguish similar to that of residents at Medan Damansara (Damansara 21) or Bukit Antarabangsa as in recent times before the authorities would act to protect us from harm?
In our country of ”F**…. and S**….”, the risk of justice being denied is a real and present danger. Please come to the KL High Court to stand with us and support us at the Judicial Review hearing if you are able. The hearing should take the full day. We hope that our legal counsels will be given fair opportunity to present our case against DBKL.
Gary Yeoh – JAC for Bukit Gasing.
It has been some while the last updated on the Save Bukit Gasing Judicial Review court proceedings. Frankly, it has been hard not to give in to despair at the extend the protagonists against transparency and justice will go to prevent our reasons for opposing DBKL’s approval of the GMSB development proposal on Bukit Gasing (KL side) from being heard.
Before providing updates, a brief recap of our journey in seeking transparency and justice maybe helpful.
Back in 2005, word abound that Gasing Meridian Sdn. Bhd. (GMSB) had submitted new proposals for developing the 15.5 hectares (approx. 38 acres) on steep hill slopes of Bukit Gasing (KL Side). Almost 50% of the hill slopes are above 25 degrees gradient. Before this submission, GMSB had submitted a fairly extensive development proposal in 1995 and lost its court action to have DBKL acquire its land after DBKL’s approval for an amended 1995 development proposal, subject to a 2 stage approval condition. DBKL had held public hearing on the 1995 development proposal.
Since 2005, various concerned individuals and organizations had made presentations and appeals to FT Ministry and DBKL on risks to lives and damage to environment. Various senior officials (FT and DBKL) appeared to be sensitive to our concerns, with some actually supportive of not allowing development. Despite all the appeals, it became clear in 2006 that sustained pressure must continue to have our fears addressed properly and the Joint Action Committee for Bukit Gasing (JACBG) was formed, with support from local residents’ association leaders and concern citizens.
JACBC had communicates and met both DBKL and FT Ministry officials to highlight our fears that the development on Bukit Gasing will be disastrous to safety of lives and property. These fears have been amply proven by landslide disasters across Klang Valley such as Highland Towers, numerous deadly landslides in Ulu Klang areas subsequently, major landslide at Bukit Antarabangsa in Dec 2008 and many more that has been recorded in this blog.
Despite our efforts with DBKL and their apparent willingness for dialogue, on the last day of 2007, letters were delivered to residents in the Gasing Condos (Fraser, Cameron and Maxwell Towers) and Gasing Indah, that DBKL will not conduct a public hearing on our concerns toward GMSB’s proposed development. It was fortuitous that Mr. Derek Fernandez (currently an MBPJ councillor amongst being champion for transparency on development approvals) was able to smell a rat and JACBG helped to organize a group of 108 residents to file for a Judicial Review on DBKL’s decision to deny a public hearing on the development on 11th February 2008.
The “rat” that was feared was DBKL’s attempts to facilitate development order to GMSB by being economical with the truth and procedural manoeuvres. After many inter-parte leave for Judicial Review hearings at the High Court, leave for Judicial Review was granted on 24th April, 2009. DBKL and GMSB filed an appeal against High Court grant of leave of to the Court of Appeal. Having lost there (Court of Appeal agreed with the High Court on 20th November 2009), they appealed to the Federal Court. So, the “rat” is amply proven.
So, let me move on to a brief update on Federal Court hearing on 10th March 2010.
There were 3 Federal Court Judges (Chief Justice Tun Dato’ Seri Zaki bin Tun Azmi (lead Judge), Dato’ Md. Raus bin Sharif and Dato’ James Foong Cheng Yuen)on the panel for the leave to appeal hearing.
Counsel for DBKL, Mr Romesh Abraham made the case for appeal on locus standi of the High Court to hear the Judicial Review, in particular with respect to “Rule 5” of the Federal Territory (Planning) Act, 1982 as amended by Planning (Development) (Amendment) Rules 1994. There were numerous other similar lines of argument. He was interrupted on a number of occasions by the lead Judge, Chief Justice Tun Dato’ Seri Zaki bin Tun Azmi (CJ) with questions less than favourable to his line of argument.
The CJ commented that the appeal seem to be premature and was inclined to reject the leave for appeal. Specifically, he felt there seem to be arguable points and Judicial Reviews were the avenue the public should be able to use in this case. However, Mr Romesh insisted and continued with his arguments. Further arguments along similar lines were presented by Dato RR Sethu, counsel representing GMSB.
Mr Sivarasa Rasiah, counsel for Bukit Gasing argued that there were indeed reasonable justification for leave to be granted by the High Court, focusing on issues of steep hill slope development fears and the Town and Country Planning (Amendment) Act 2001 (Act 1129). These and others were considered by the High Court and Court of Appeal in granting leave for Judicial Review.
Two of the three Judges were inclined not to grant leave for the appeal. However, one judge appeared to be considering the merits of the appellants (DBKL & GMSB). After a brief discussion between the Judges, the hearing was adjourned with the setting of Friday, 19th March as date that the Federal Court will present its decision on grant of leave for the appeal.
Note: “Rule 5” is the amendment made by DBKL mayor to the FT Planning Act (1982) in 1994 to enable DBKL to justify that requirement for public hearing will apply when there is an increase in density or change of use. The amendment was made after DBKL lost the case between of Datin Azizah v. Dewan Bandaraya Kuala Lumpur for DBKL’s failure to notify and hear objections from residents before granting development order for a development. FT Planning Act (1982) had included “material consideration” by the Mayor in considering planning applications before the “1994 Rules” amendment.
Significantly, DBKL rejects Town and Country Planning (Amendment) Act 2001 (Act 1129) as applicable to them despite the fact that this amendment was to apply to Federal Territories. It is shocking how DBKL persists in claiming non accountability to the people is purports to serve.
The protagonists against transparency and justice are continuing to deny us the right to Judicial Review despite leave granted by High Court and agreed by Court of Appeal. JACBG is appealing to all interested in transparency and justice for support to the fight. The tactics used has significant increase our legal costs and we appeal to readers and friends to contribute to the Save Bukit Gasing Trust Fund. Click “How you can help us..”
JACBG is organizing a charity dinner on 10th April 2010 at the community hall in Gasing Indah/Petaling Gardens. We would be grateful for your support. Please visit again shortly to see more details on the event.
JAC for Bukit Gasing
“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”-Martin Luther King Jr.
Today (5th May 2008), the JACBG lawyers filed a 2nd Judicial Review to challenge the legality of the 3 approvals (i.e. Sub-division of Land, Hoarding Work and Earthworks approvals). The High Court hearing of 23rd and 25th of April had showned that DBKL and GMSB will persist in legal manoeuvers to prevent arguments that will show how they have been circumventing the regulations in the Federal Territories Planning Act (1982) as well as other laws to favour greedy developers and DBKL’s ongoing practice of non-transparency of approval processes.
To ensure that the Stay Order and Judicial Reviews of DBKL decisions can be heard and conducted more efficiently without DBKL/GMSB lawyers deploying delay tactics, JACBG lawyers had requested that a combined hearing of Stay Order and 2nd Judicial Review be held. Hence, today’s hearing was suspended and the High Court has fixed the date for such a hearing for Friday, 16th May 2008, beginning at 3pm.
GMSB has also began scare tactics by questioning JACBG’s lawyers’ wisdom in causing delays in hearing and threatening residents on potential damages from legal actions taken. The facts are that DBKL had refused to provide any information of approvals requested by the residents after the 14th November 2007 meeting with DBKL Director of Planning (Tuan Haji Mahadi). On the contrary, despite assurances at that meeting, DBKL issued Hoarding Work approval on 16th November 2007, followed by earthworks approval on 31st December 2008. Details of approvals were first revealed by GMSB only 4 days before the 23rd April hearing. In defiance of High Court direction to provide information to the residents at least a month before 23rd April, DBKL only revealed issuance of approvals a day before that hearing.
DBKL and GMSB lawyers had also deliberately prevented the Stay Order (as as a consequence, the interim ex-parte Interim Stop Order) from proceeding speedily by a combination of late provision of affidavits and legal manoeuvers to stall JACBG lawyers’ arguments. GMSB quite conveniently failed to highlight that they have on a ‘goodwill’ basis stopped hoarding work nor the fact that earthworks have yet to begin.
GMSB proudly announced that they are part of the Santuary Gasing Group of companies. Their tactics now are reminisent of tactics used by Gasing Heights Sdn Bhd (also part of Sanctuary Gasing Group) in June 1991 legal action for damages against 7 residents that had filed for a Judicial Review against decision by MPPJ (as it were then). In August 1996, Judge Mahadev Shanker (one of the Judges in the Royal Commission for Lingam Tape episode), had ruled against Gasing Heights Sdn Bhd’s damages claim of RM34.8M against the residents.
It worth noting the words used by Judge Mahadev Shanker regarding a Sanctuary Gasing Group company in his judgement:
‘I struck this action out on the ground that the statement of claim did not disclose a reasonable cause of action and also on the ground that it was an abuse of the process of this Court.’
‘In the light of my other findings I do not think it is necessary for me to go into the developer’s motives for filing this action.’
‘Suffice to say in conclusion that I hope the award for costs against the developer in this case and a proper understanding of the law should persuade future litigants who wish to take up a plea of abuse of process that it would be in their best interests to avail themselves of the salutary provisions of O 18 r 19(1) of the Rules of High Court 1980.’
For those interested in learning more about tactics of GMSB, ala Sanctuary Gasing Group, do look at the following link:
The 108 applicant for Judicial Review against DBKL and many more residents in the vicinity remain resolute in their pursuit of justice from the High Courts as DBKL will not act to protect their interests. They will not be intimidated by a greedy developer out to make money at the expense of their well being and wontan destruction of environment that should have been preserved for the benefit of the public in KL and PJ.
JAC for Bukit Gasing (JACBG)
NST Online » Local News
The property owners with counsel R. Sivarasa and Derek Fernandez.
KUALA LUMPUR: The High Court yesterday granted an interim order to a developer to stop work on a 15.52ha land in Bukit Gasing
This is despite two approvals granted by City Hall to developer Gasing Meridian Sdn Bhd (GMSB) dated Oct 2 and Nov 16 last year to proceed with the work.
Judge Datuk Abdul Wahab Patail granted the interim order, effective until April 23, when 108 property owners from Gasing Indah, Cameron Towers, Maxwell Towers, Frasers Towers and Petaling Gardens Neighbourhood Watch will attend an inter-parte hearing.
The owners are seeking to stop all further action by the Kuala Lumpur mayor in respect of the application for planning permission by GMSB, pending disposal of the inter-parte hearing.
The residents were represented by counsel R. Sivarasa and Derek Fernandez.
On March 17, the High Court granted leave for judicial review to the residents, allowing them the right to express their concerns over a development project in the area.
They were also granted leave to quash the decision of the Kuala Lumpur mayor not to hold a public hearing on the application by GMSB for a development order.
The court had directed the mayor, the respondent in the case, to forward a copy of the reports and documents pertaining to the application by GMSB to the residents before April 23.
GMSB plans to build 71 bungalows on the 15.52ha ground which it claimed was a privately owned land since 1899 and had never been part of a green lung nor a natural forest.
In their grounds of application, the residents stated that the mayor had acted contrary to the policy and intent of the Federal Territory (Planning) Act 1982 (Act 267), which required the preparation of a local plan for Kuala Lumpur, not just to adjoining owners, but all persons in the Federal Territory, a right to be heard in respect of the development plan for their area.
The residents had also said the proposed development of the bungalows would be on hillslopes, which were prone to landslides.
One of the landslides had occurred in 1971 which severely damaged six government-owned bungalows on Jalan Tanjung, Bukit Gasing.
However, on March 25, GMSB’s group general manager, Richard See, was quoted as saying that the low-density Sanctuary Ridge Kuala Lumpur City development project would go ahead.
He said the property was freehold and had been converted and subdivided for residential use since 1977 with individual bungalow titles. This was confirmed in the Kuala Lumpur Structure Plan 2020
By : Danutcha Chelliah
NST Online: 2008/03/18
Bukit Gasing residents thanking lawyer R. Sivarasa (right) as they leave the Kuala Lumpur High Court.
KUALA LUMPUR: The High Court yesterday granted a leave for judicial review to 108 Bukit Gasing residents, allowing them the right to express their concerns for a development project in the area.
The residents were also granted leave to quash the decision of the Kuala Lumpur mayor not to hold a public hearing on the application by Gasing Meridian Sdn Bhd (GMSB) for a development order.
The mayor’s decision was conveyed to the residents in a letter dated Dec 31, last year.
Judge Lau Bee Lan directed the mayor, who is the respondent in the case, to forward a copy of the reports and documents pertaining to the application by GMSB to the residents at least a month before the next court hearing.
The documents would include reports from a geological survey, soil structure and soil stability evaluations, proposed geohazard monitoring, hydrology report, environmental impact assessment (EIA), traffic impact analysis and social impact analysis from the authorities.
Also to be submitted are proposed site and lay-out plans, the earthwork plan with sections, the development report and documents produced by experts or consultants engaged by GMSB.
In their grounds of application, the residents, represented by counsel R. Sivarasa, said the mayor had erred in law and acted in excess of his jurisdiction when he wrote the letter stating that the procedure for hearing objections would not be implemented as it would violate existing rules and regulations.
The residents claimed the mayor had failed to take into account that they had a right under common law to be given due notice and to be given a chance to voice their opinions in the decision-making process of planning.
They stated that the mayor had acted in contrary to the policy and intent of the Federal Territory (Planning) Act 1982 (Act 267).
The Act required the preparation of a local plan for Kuala Lumpur, which would have given not just adjoining owners, but all persons in the Federal Territory, a right to be heard in respect of the development plan for their area.
The residents said the proposed development of 71 bungalows would be on steep hill slopes.
They also claimed that the 13 major landslides which had occurred in the Klang Valley and nationwide since 1993 provided ample proof of the real dangers in carrying out development projects on such steep slopes.
According to the residents, there had been a few landslides in the area.
These included a landslide which was apparently caused by hill slope development in 1971 which severely damaged six government owned bungalows along Jalan Tanjung, Bukit Gasing.
They said the existence of a 23 million litre water reservoir situated just above the proposed development site and a large underground pipeline on its western boundary, coupled with large scale earthworks from the development project, could weaken the soil structure and cause potential danger to the retaining structures at the reservoir.
The residents claimed that the proposed development would result in 15.52ha of hilly and secondary forest to be cleared and re-sculpted with an estimated 760,000 tonnes of excess earthwork to be relocated.
Lau set April 23 for an inter-parte hearing for the residents’ application to stop all further proceedings and actions by the mayor in respect of the application for planning permission by GMSB, pending the disposal of the inter-parte hearing for judicial review.
A letter was been published by NST on 30th Jan 2008, supporting Gasing Meridian’s proposal to build high-end bungalows on Bukit Gasing (KL-Side) as a solution to keep squatters away. The writer proposed that opposition to the proposed development is not objective and misguided. Immediately following this, a letter of 1st Feb 2008 supported the argument and suggested that squatters will increase crime, giving rise to danger to children.
As residents living near the proposed steep hill slope development by Gasing Meridian, we view the number of press reported fatalities from 14 major landslides as legitimate and objective fears. Steep hill slope fatalities from development since Highland Tower of 1993 (approved and supervised by authorities) in Malaysia is recorded as 142. From Klang Valley alone, the total recorded is 68 deaths with extensive properties destroyed and damaged.
We live within sight of squatter settlement in the area. The level of squatter housing in Pantai Dalam and Bukit Gasing (KL-side) has been stable over many years. It is spurious for the writer to suggest that “Over the last 3 years,numerous squatter huts have been put up”. In the recent year a few sheds and stalls, on the flat land at the edge of developer’s property, had been put up. Isn’t this more indicative of opportunists hoping to gain some payment from the developer?
To us, the squatters are wise about the dangers of attempting to build living quarters on steep hill slopes and unstable ground. They have never ventured to build up the steep hill slopes.
It is ludicrous to think that squatters have the capability to build on Gasing Meridian’s proposed development site. According to the developer’s figures, approx 50% of slopes are above 25 degree gradient, with 86.4% of the hill above 15 degrees. 3 high-end bungalows were abandoned on Bukit Gasing (PJ-Side) in the midst of piling works in recent years. Extension work by Sivan Temple near Fraser Towers in March 2007 caused a significant landslide. Mitigation work is still ongoing and there have been 2 further slope damage adjacent to the original landslide.
March 2007 – Sivan temple landslide:
We find the writer’s objectivity suspect. To attempt to justify dangerous development on steep hill slopes as means to curb squatters is misguided. To champion Gasing Meridian’s development as a means to contain an imaginery further incursion of squatters is hardly a sign of an objective mind.
Supporting letter justifying unsafe and environmentally damaging developments as a means to curb squatters lacks imagination. A proper argument to contain squatters would be for DBKL to accelerate its plans to improve housing in Pantai Dalam and kampongs in the area as in the Kuala Lumpur Structure Plan 2020.
It is sad that we no longer look to fighting rising crime as a responsibility of authorities to understand the underlying causes of crime and implementing preventive measures. Equally disapponting is our reduction of expectation that our police should be doing more to provide proper policing. Shouldn’t the police and DBKL be the better answer to reduce squatter problems and rising crime? Surely a few multi-millon dollar hign-end bungalows (at RM 5.1 million/plot excluding building costs) would be more likely to attract crime? What if proposed development was abruptly abandoned for economic reasons? Would this not present a major threat to safety and an act of environmental vandalism? Let us not forget that the area has Rukun Tetangga actively operating.
Residents of Gasing Indah