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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.
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
The panel of 5 Federal Court judges delivered a shocking and surprising decision to reject our leave for appeal on the Court of Appeal majority decision (2 to 1) against our Judicial Review application to require DBKL to hold a public hearing regarding approval of Gasing Meridian Sdn Bhd’s proposed development at Bukit Gasing (KL-Side).
We had anticipated that the Federal Court would have allowed leave to hear our argument that the majority decision by the Court of Appeal has serious implications. The minority judgement in our favour was that the Town & Country Planning (Amendment) Act (2001), that was gazetted on 20 February 2002 by the then Minister of Housing and Local Government (Dato’ Seri Ong Ka Ting) is applicable to the Federal Territory of Kuala Lumpur. Hence, DBKL should not have approved developments on Bukit Gasing without giving a public hearing to residents.
For more than 5 years, we have challenged DBKL and the developer through the courts. We have argued that as residents threatened by landslides by Gasing Meridian Sdn Bhd’s proposed development on the steep hill slopes of Bukit Gasing, we have to be given the right to a public hearing by DBKL. The Town & Country Planning (Amendment) Act 2001 (TPCA), passed by our Parliament and subsequently gazetted should have required DBKL to give us a public hearing.
Despite our losing through a majority decision by the Court of Appeal in March 2012, we were heartened by the minority decision of Y.A. Dato’ Jeffery Tan. He strongly argued that the TPCA should apply and our right to public hearing be given. His considered opinion was that the Planning (Development) (Amendment) Rules 1994 instigated by DBKL and approved by the Minister then, to amend Rule 5 of Planning (Development) Rules 1970 should not be used to limit rights of residents to a public hearing before planning approval.
In short, Y.A Dato’ Jeffery Tan argued that Rule 5 (after amendment in 1994) is a subsidiary legislation. In his view the general principle of statutory interpretation should be that subsidiary legislation may not be broader than the enabling legislation.
What is plain to see with the decision of the Federal Court today is the following:
- Residents of KL do not have the same rights to a public hearing as other residents living outside of Kuala Lumpur in Peninsular Malaysia.
- Non-KL residents unfortunate enough to live next to land under DBKL will not have the same rights to a hearing under DBKL planning rules as he/she has within Selangor.
- Whilst the Parliament may have amended the Town & Country Planning Act to ensure the whole of Peninsular Malaysia (defined as including KL) is governed by the same regulations, DBKL can continue to limit the rights of people by utilizing Rule 5.
Note: Rule 5 as used by DBKL means affected neighbours will have no right to be heard or informed if a development approval do not involve a change in density or use of land.
We have tried to seek justice and transparency through the courts and have failed. However, we will continue to speak out and trust that the court of public opinion as well as public desire for elected mayors to ensure accountability and transparency will prevail.
Should we continue to allow authorities to decide policies that negatively impact our rights? Should their unfeeling and uncaring attitudes continue unquestioned?
It is time that we demand accountability from those that govern us. Let us not trust in platitudes and lies anymore.
JAC for Bukit Gasing.
Thursday September 13, 2012
By CHOONG MEK ZHIN
Residents want to be heard
ANOTHER residential development is something the already densely populated Section 10 Wangsa Maju area does not need and residents will be attending a meeting that will be held at Kuala Lumpur City Hall (DBKL) soon to voice out their objections to such a project that will see the secondary jungle next to their homes cleared.
The fairly large area is one of the few remaining green spots around.
“Previously, before one of the later condominium project was built here, there was a peak that many residents could easily hike up. Many used to have picnics up there.
“I remember climbing up numerous times for the best seats to watch fireworks,” said green building consultant Sheena Moses, 24.
She moved in with her family about 15 years ago and had watched the peak cleared for another condominium.
However, the rest of the forest remains untouched and some still venture out for a hike at times and all enjoy the benefits of having one of the last green lungs in the area so close to home.
Currently, residents living in the immediate vicinity of the forest are from the Section 10 Wangsa Maju low-cost flats as well as Sri Ledang, Sri Kinabalu, Sri Jelatek, Sri Lojing and Desa Villas condominiums.
The project that residents are protesting against involves the construction of three 26-storey apartment blocks consisting of 721 units with a five-storey carpark podium….More
We do not need to increase the density of this area. Please stop this development and move to brownfields or other existing sites available for development.
The fight to save Bukit Gasing on KL side from ravages of development had been fought for more than a decade. Promises to listen and even to gazette Bukit Gasing have been made, but nothing have changed. Petitions to DBKL and former PM Abdulah Badawi had been futile. Lately, the pace of development have accelerated. Even residents in low cost apartments in the kampong areas are being evicted to make way for development. If nothing is done, the rich will increasingly own the greens of Bukit Gasing.
In Feb 2008, residents/Owners in close proximity feared for their safety and took DBKL to court for approving development on the steep hill slopes of Bukit Gasing without having a public hearing. After more than 4 years, they are still seeking transparency of approval process through the judicial processes. In the meantime the Federal Territory Minister, Datuk Raja Nong Cik is proposing to wipe clean the stain of devastation of Bukit Gasing by renaming Bukit Gasing in KL to Bukit Kerinchi. Any visitors to Bukit Gasing will have seen that the pace of development on KL side Bukit Gasing has picked up. Locals on KL side are well aware of how Bukit/Kampong Kerinchi (the original ones) are slowly disappearing.
We now seek your support for a Petition to the Prime Minister, YAB Datuk Seri Najib Razak. Please email us if you able to help gather signatures for the petition the traditional way or you can help by signing the online version here…
We seek your support and help in communicating to the wider public such that our PM will be aware of the wide public concern on the rampant development on Bukit Gasing KL side that threatens the safety of residents there. Without a public hearing, both the risks of steep hill slope development and the sustainability of Bukit Gasing/Gasing Ridge will not be known. Rampant developments in Bukit Gasing KL side cannot be of benefit to the wider population.
Please help with this appeal.
JAC for Bukit Gasing.
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.
They also question City Hall’s lack of open discussion on development project
KUALA LUMPUR: The Joint Action Committee (JAC) for Bukit Gasing wants Kuala Lumpur City Hall (DBKL) to release the environmental impact assessment (EIA) report on the proposed development on the hill.
Yesterday, about 100 residents affected by the proposed development in Gasing Indah (on the Kuala Lumpur side) gathered to press their case, ahead of a Court of Appeal decision tomorrow.
The residents applied for a judicial review in the High Court in 2008 challenging City Hall’s approval of the development. However, they were denied the right to be heard and appealed against the decision in the Court of Appeal.
Spokesman for the joint committee Gary Yeoh, 57, said: “I am questioning why was there no public hearing by City Hall before approval.
“In November 2007, during a meeting with City Hall, they told us the land had been subdivided but no development will be granted to the developer.
“The following month, we received a letter from City Hall stating the development will continue without a public hearing.”
He said so far more than 108 petitions from residents from the surrounding communities were sent to the developer and City Hall since 2007.
“We are not against development but we want City Hall to provide us with the EIA report for safety and security reasons.
“If they continue with the project, it will adversely affect the ecology and environment of Bukit Gasing and our safety,” he said.
Also present were Lembah Pantai MP Nurul Izzah Anwar and PJ South MP Hee Loy Sian.
JAC and other representatives of residents’ associations have opposed Meridian Sdn Bhd’s (GMSB) proposed development since early 2006, for fear of landslides and safety issues.
It is said that since 1993, there have been 14 major landslides, with press reports that indicated at least 68 fatalities apart from the millions of ringgit in loses.
JAC’s is helping to pay for legal costs by pooling resources from residents and through charity drives.
Tomorrow, the Court of Appeal gives its verdict on the appeal against the 15.52 ha hillside development project at the KL side.
Meanwhile, Nurul Izzah said she sent a letter to KL mayor (Tan Sri Ahmad Fuad Ismail) recently requesting the release of the EIA report.
“At least, with the EIA report, we were able to know the present condition of the area that is to developed — the residents want reassurance the surrounding areas are safe from danger,” she said.
She said she does not want a repeat of the hillside tragedy of Bukit Antarabangsa and Medan Damansara.
As for Hee, he said the matter was brought to the attention of Parliament and the Federal Territories and Urban Well-being Ministry.
“However Datuk Raja Nong Chik Zainal Abidin has yet to give his answer on the approval of this project.
Mages: Forest slowly losing beauty
R. MAGESWARA, 34, said the beauty of this forest was about to be stripped if development continued.
“Everyday I sit at my balcony watching workers level the hill slope.
Another resident Mohamed Kamar Mohamed (pic), 68 said he is not against development but residents have a right to express their opinion through public hearing.
“From the public hearing, Kuala Lumpur City Hall will be able to get our opinion on the issue. We want City Hall to certify the project is safe and at the same time, preserve our forest.”
Mohamed who has been living at Fraser tower since the last eight years said a lot of changes (development) took place on Bukit Gasing.
Resident Dr A. Mallika, 58 and her daughter A. Gayathri, 27 said the development would also destroy wildlife in Bukit Gasing forest.
Gayathri said four years ago the scenery from her house balcony was beautiful.
“I used to see monkeys swinging from tree to tree,” she said, urging the project be scrapped.