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Wednesday October 3, 2012 . The Star online

http://thestar.com.my/news/story.asp?sec=courts&file=/2012/10/3/courts/12115446

 

PUTRAJAYA: A five-year legal battle involving 108 Bukit Gasing residents against a development order by the Kuala Lumpur mayor over a hillslope project has ended, after the Federal Court here dismissed their leave to appeal against a Court of Appeal decision.

On March 6, the Court of Appeal upheld a High Court decision which had dismissed the residents’ review application.

The five-member panel, chaired by appeals court president Justice Md Raus Sharif, said the Bench was unanimous in passing the majority decision of the Court of Appeal.

“We’re of the view that no further argument is needed in this case, and the appellants’ application is dismissed with costs,” ruled Justice Md Raus.

The court ordered RM10,000 each to be paid to respondents Kuala Lumpur mayor and the developer, Gasing Meridian Sdn Bhd.

The other panel members were Justices Sulong Matjeraie, Hashim Yusoff, Ahmad Maarof and Zainun Ali.

On March 6, a three-member panel chaired by Court of Appeal Justice Ramly Ali delivered a 2-1 majority verdict, with Justices Ram­ly and Zaharah Ibrahim dismissing the residents’ appeal and Justice Jeffrey Tan Kok Wha dissenting.

Justice Zaharah had disagreed with the submission by the residents’ lawyer, R. Sivarasa, that the amended Town and Country Plan­ning Act 1976, which accorded the 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.

The 108 residents filed the application at the Kuala Lumpur High Court for a judicial review in 2008 to quash the development order by the 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, allowed the developer to carry out earthwork and sub-division in the area.

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.

During yesterday’s proceedings, the mayor and Gasing Meridian were represented by Ramesh Abraham and Datuk R.R. Sethu respectively. — Bernama

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Kuala Lumpur – October 10, 2011

DBKL signed yet another death warrant on Bukit Gasing (KL side) back in October 2007 and in January 2008 approved earthworks on the hill. These actions were taken without any objections public hearing. DBKL even denied any development approvals were given at a meeting between concerned residents and them in November 2007.

Concerned residents against the proposed development filed for a Judicial Review (JR) in February 2008 against DBKL after DBKL officially denied them the rights to a public hearing. DBKL and the developer challenged the right of the High Court (YA Datuk Lau Bee Lan) to hear the JR, resulting in a 2 year delay before the JR hearing was held. Sadly, in September 2010, a different High Court Judge ruled against the concerned residents. However, an appeal against the decision was filed and the appeal hearing has been set for 12th.December, 2011.

Gasing Meridian started the destruction of trees on Bukit Gasing before end of August 2011. The pictures below shows the current rate of destruction of the forest on the steep hill slopes.

It seems that for DBKL, residents have fewer rights than developers. Their fear of risks to their lives and homes are secondary to the rights of land owners. The deaths and destruction of homes in Highland Towers and in Bukit Antarabangsa are of no concern to DBKL.

It is a sad fact that DBKL and the Federal Territory minister are more intent on development of KL without paying heed to the quality of living, good environmental planning, sustainable development and much more that are required to make KL City a world class city.

To wit, in Medan Damansara, DBKL claimed that the building of 21 bungalows on steep hill slopes were safe. It took a huge landslide that almost claimed the lives of a family there for them to issue a stop work order. Unsurprisingly, it was determined that DBKL had not adequately reviewed the development plans. The developer can now only build 16 bungalows. Now DBKL is in negotiations to compensate the developer for the loss of 5 bungalows at KL rate payers’ expense.

In the meantime, residents at the foot hill of the proposed development will have to live in fear of landslides during rainy seasons.

DBKL is under the control of the Federal Government. We can only wonder to the reality of a more open government when DBKL is permitted to ignore genuine concerns of residents of potentially unsafe and unsustainable developments.

Bukit Gasing should be preserved substantially as a green heritage for KL city and future generations in KL and Petaling Jaya. What will it take before DBKL and the Federal Government step up to the challenge of providing more transparent and responsible town planning? Perhaps another carnage from landslides at Bukit Gasing?

Gary Yeoh – JAC for Bukit Gasing.

 

More Phtotos here….

 


 

A video highlighting the issues surrounding the development of Bukit Gasing.Residents in the vicinity of the proposed development are fearful of the risks of landslides.Their request for a public hearing was turned down by the Kuala Lumpur City Hall.The residents then challenged the KL City Hall via a Judicial Review at the KL High Court which was thrown out. The residents have filed an appeal.
Read More here

Directed by Mahi Ramakrishnan
DP: H.Berbar
Editor: Jonathan Huet
November 2010

DBKL cites how Hong Kong was able to have safe hill slope developments. Well, here are some information from the Geotechnical Engineering Office (GEO) Hong Kong website :

  • On average 300 landslides a year (September 2006 info note)
  • HK have continuous monitoring and forensic landslide investigations
  • Dedicated and trained geotechnical experts continually track and make improvements to slope management and design of slopes
  • HK government funds a Landslide Preventive Measures Program, with continuous program (recorded on website) of government owned slope upgrades
  • HK government policy is to make slopes as natural as possible
  • They serve “Dangerous Hillside Orders” to privately owned slopes to ensure safety
  • Recognizes public participation and makes available a large number of information to the public

To see how much investments and skills are required for safe hill slope development, go to the Geotechnical Engineering Office (GEO) Hong Kong website. Specifically, look at the landslide reports recorded on the website.  For those in a rush, following are statistics from the GEO Hong Kong:

Year No notable Landslides* Year No notable Landslides*
1997 18 2003 9
1998 15 2004 3
1999 15 2005 8
2000 8 2006 2
2001 4 2007 4
2002 7 2008 2

* Refers only to number of notable landslides studied only, not total no of landslides

The GEO continually investigates landslides to learn. They are not ruled by a “GP WPKL 2010” and pass the buck to developers and geotechnical experts, nor do they shunt involvement of the public. In fact, since the mid-1990, landslide risk assessment has become a factor in developments on hill slopes.  They recognized that conventional deterministic approach of slope stability analysis for slope design was inadequate and not holistic enough.

Hong Kong practises landslide risk management. This comprises an estimation of the landslide risk, deciding whether or not the risk is tolerable, exercising appropriate control measures to reduce the risk where the risk level cannot be tolerated. Implicit in this are human lives! Essentially, they do not rely on just 2 geotechnical experts to do away with buffer zones. In fact, in some cases debris resisting barriers and statutory repair orders are imposed.

Most importantly, the Hong Kong authority recognizes that residents next to hill side developments are stakeholders. They reach out to communicate and facilitate partnership with them.

DBKL and Federal Territory Ministry appears to think residents need not be involved nor should they be concerned.  Hence, it is not surprising that the Real Estate and Housing Developers’ Association and certain developers are jumping for joy at the prospect of working with GP WPKL 2010.

The following are information from the National Slope Master Plan:

  • Landslide records are only based on media reports from 1973 to 2007 [sic]
  • Reported landslide events are concentrated mainly in hillside development areas
  • Records show that Kuala Lumpur (19.2%) and Selangor (16.6%) are the most landslide-prone areas, followed by Perak (13.4%) and Pahang (12.3%). Kuala Lumpur has the highest landslides record.
  • Landslide hazard assessment tools used by JKR only for road safety and are yet to be verified for effectiveness. Landslide hotspots yet to be identified
  • Losses due to landslides in Malaysia are considerable, but are not consistently compiled and properly tracked

A lot more can be found on the internet that requires DBKL and Federal Territory Ministry to explain how they have put People First in putting forth GP WPKL 2010.

In earlier articles, questions on how DBKL can be exempt from National Physical Plan (NPP) policies have been raised. The Prime Minister is the chairman of the National Physical Planning Council. Should he not be concerned that the Mayor of Kuala Lumpur considers the NPP as irrelevant in the Federal Capital of Malaysia?

Bukit Gasing residents have a right to a public hearing to understand how DBKL and various agencies have taken care of their safety.  Kuala Lumpur residents should be concerned at how they are being disenfranchised by DBKL through GP WPKL 2010 and their rejection of Town & Country Planning Act 172 as applicable in KL.

Gary Yeoh – JAC for Bukit Gasing.

Charles Santiago
Sep 9, 10
11:43am
COMMENT Usually people learn from tragedies. But it’s just the opposite in Malaysia. Here the government and its departments and ministries are well known for their tangos with danger, not to mention disaster.

The latest on its list is the controversial development project in Bukit Gasing.

The recent High Court judgment throwing out the application by 108 residents for a judicial review to challenge the development order issued by the Kuala Lumpur mayor means Gasing Meridian Sdn Bhd can now continue to build 70 bungalows on a 15.5-hectare site in Bukit Gasing, amidst protest by residents who fear their safety.

But in her judgment, High Court judge Azizah Ali said the proposed building site is private land and not one that was earmarked as a green lung.

She also stated the Federal Territories Planning Act 1982 applies to the development and therefore, the residents would not have the right to be heard on the development – unless it falls within the rules under the Town and Country Planning Act 1976, which did not apply in this case.

Environmentally risky

But this case simply cannot be about the law and jurisdiction as it raises important questions of the planning policies of City Hall, involves the lives of thousands of residents and is clearly an environmentally risky project.

For example, although freedom of expression is guaranteed in the Federal Constitution, various policies including the Police Act are frequently used to clamp down on peaceful gatherings.

My question is simple – if various laws can be used to curb legitimate dissent in the country, why can’t other merits of the case be taken into consideration before a verdict is delivered?

49 percent of the said land, however, consists of slopes measuring 26-35 degrees or higher while 37 percent of the slopes are between 16-25 degrees.

Bukit Gasing is also highly susceptible to land erosion due to its soil composition.

And, Malaysians have no faith in the planning authorities due to their complacency when it comes to implementing controls to ensure safe development.

The Highland Tower collapse (below) and the Bukit Antarabangsa disaster have not been forgotten.


Images of the dead and decomposing bodies, pain and anguish of mourning relatives are yet to be wiped off our memories.

Let’s now look at some statistics – over the last 15 years, at least 14 major landslides occurred in Peninsular Malaysia alone that led to the death of 68 persons.

If this is not frightening enough, one landslide occurred in March 2007 after renovation work was carried out on a Hindu temple on Bukit Gasing.

On Jan 5 the following year, another landslide occurred, near the same temple.

Both the developer and City Hall have not entertained residents’ requests for copies of the soil and other tests that allegedly prove Bukit Gasing can be safely developed.

As such, I urge the City Council to hold a public hearing to enable the residents to air their concerns on the environmental and safety issues concerning the project.

The City Council should exercise complete transparency and not perceived as engaging itself in back door deals with the developer to push through the project.

//

Charles Santiago is member of Parliament for Klang.

8th.Sept.2010

Usually people learn from tragedies. But its just the opposite in Malaysia. Here the government and its departments and ministries are well-known for their tango with danger, not to mention disaster. The latest on its list is the controversial development project in Bukit Gasing.

The High Court judgement throwing out the application by 108 residents for a judicial review to challenge the development order issued by the Kuala Lumpur mayor means Gasing Meridian Sdn Bhd could now continue to build 70 bungalows on a 15.5-hectare site in Bukit Gasing, amidst protest by residents who fear their safety.

But in her judgement, High Court judge Azizah Ali said the proposed building site is private land and not one that was earmarked for green lungs.

She also stated the Federal Territories Planning Act 1982 applies to the development and therefore, the residents would not have the right to be heard on the development — unless it falls within the rules under the Town and Country Planning Act 1976, which did not apply in this case.

But this case simply cannot be about the law and jurisdiction as it raises important questions of planning policies of City Hall, involves the lives of thousands of residents and is clearly an environmentally risky project.

For example, although freedom of expression is guaranteed in the Federal Constitution, various policies including the Police Act are frequently used to clamp down on peaceful gatherings.

My question is simple – if various Acts could be used to curb legitimate dissent in the country, why can’t other merits of the case be taken into consideration before a verdict is delivered?

Forty-nine percent of the said land, however, consists of slopes measuring 26-35 degrees or higher while 37 percent slopes between 16-25 degrees.

Bukit Gasing is also highly susceptible to land erosion due to its soil composition.

And, Malaysians have no faith in the planning authorities due to their complacency when it comes to implementing controls to ensure safe developments.

The Highland Tower collapse and Bukit Antarabangsa disaster has not been forgotten. Images of dead and decomposed bodies, pain and anguish of mourning relatives is yet to be wiped off our memories.

Let’s now look at some statistics – over the last 15 years, at least 14 major landslides occurred in Peninsular Malaysia alone that led to the death of 68 persons.

If this is not frightening enough, one landslide occurred in March 2007 after renovation works were carried out on a Hindu temple on Bukit Gasing itself. On Jan 5 the following year, another landslide followed near the same temple.

Both the developer and City Hall have not entertained residents’ requests for copies of the soil and other tests that allegedly prove Bukit Gasing can be safely developed.

As such, I urge the City Council to hold a public hearing to enable the residents to air their concerns on the environmental and safety issues concerning the project.

The City Council should exercise complete transparency and not perceived as engaging itself in back door deals with the developer to push through the project.

Charles Santiago

Member of Parliament, Klang

http://votecharles.wordpress.com/2010/09/08/bukit-gasing-judgement-we-never-learn/

Santiago dismayed over Bukit Gasing ruling-FreeMalaysiaToday

 Court rejects Bukit Gasing residents’ bid

 2010-09-07 11:09

KUALA LUMPUR, Monday 6 September 2010 (Bernama) — Gasing Meridian Sdn Bhd (GMSB) can now proceed to develop the Sanctuary Ridge Kuala Lumpur City project comprising 70 bungalows on a 15.5-hectare site in Bukit Gasing here.

High Court Judge Datuk Aziah Ali today rejected the application by 108 residents for a judicial review to challenge the development order issued by the Kuala Lumpur Mayor for the controversial hill slope project in their area, which is one of the few green lungs near Kuala Lumpur.

More

September 06, 2010

KUALA LUMPUR, Sept 6 — Gasing Meridian Sdn Bhd (GMSB) can now proceed to develop the Sanctuary Ridge Kuala Lumpur City project comprising 70 bungalows on a 15.5-hectare site in Bukit Gasing here.

High Court judge Datuk Aziah Ali today rejected the application by 108 residents for a judicial review to challenge the development order issued by the Kuala Lumpur mayor for the controversial hill slope project in their area, which is one of the few green lungs near Kuala Lumpur.

Aziah, who made the decision in chambers, ruled that based on the Federal Territory (Planning) Act 1982, the 108 residents did not have the right to be heard for the development…

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Bukit Gasing residents disappointed -TheStar Online

Wednesday September 8, 2010

BUKIT GASING residents have expressed disappointment over the Kuala Lumpur High Court decision on Monday dismissing a judicial review application by 108 Bukit Gasing residents to quash a development order to build 70 bungalows.

They claimed their fundamental right to be heard over a project development in the area has been denied.

More

Bukit Gasing to continue bungalow development – The Malay Mail

KUALA LUMPUR: The long-disputed bungalow development at Bukit Gasing by Gasing Meridian Sdn Bhd overcame another legal hurdle today when the High Court here decided residents in the area don’t have any right to be heard in relation to the proposed hillside slope project.

Counsel R. Sivarasa — who represented the residents — said the judge stated the Federal Territories Planning Act 1982 applies to the development.

Therefore, the residents would not have the right to be heard on the development — unless it falls within the rules under the Town and Country Planning Act 1976, which did not apply in this case, he explained.

“For those reasons, the right to be heard only arises if there’s a change of density or use of the land, which did not arise in this case.”

The decision was delivered by Judge Datuk Aziah Ali in chambers, dismissing the judicial review application filed by the residents and the Joint-Action Committee of Bukit Gasing in an effort to seek a public hearing on the said development.

More

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.

Lawyer Sivarasa Rasiah briefing the press regarding the High Court’s ruling against an application by Bukit Gasing residents for a judicial review. Photo credit: dantang

Malaysiakini – Sep 6, 10 4:15pm

The Kuala Lumpur High Court has dismissed an application by Bukit Gasing residents for a judicial review over a luxury bungalow housing project in the area.

Justice Aziah Ali ruled that based on the Federal Territory (Planning) Act 1982, the 108 applicants who opposed the project did not have a right to have the case heard.

Aziah’s judgement, which also lifted a stay order, meant that the 70-bungalow project which had been delayed for 30 months can now resume.

The grounds of Aziah’s judgment would be given in a few days.

The applicants for the judicial review had attempted to seek a court ruling to stop the project in order to protect Bukit Gasing, which is one of the few green lungs near Kuala Lumpur.

http://www.malaysiakini.com/news/142073

The High Court is set to deliver its judgement on the Judicial Review filed by 108 applicants representing communities in Gasing Condos (Fraser, Cameron and Maxwell), Gasing Indah (both KL and PJ sides) back in February 2008.

The Judicial Review was made initially to challenge DBKL’s decision to deny affected residents the right to a public hearing. In the course of the hearing, it became known that DBKL had approved development orders for Gasing Meridian Sdn Bhd (GMSB) to build some 68 multi-million ringgit bungalows on the steep hill slopes of Bukit Gasing under DBKL’s jurisdiction. This resulted in a change to the Judicial Review to include decision by DBKL to issue GMSB a development order.

This blog has written about the tactics of DBKL and the developer to derail residents’ right to a judicial review over the years. They had refused to accept the clearly written judgement of the then High Court Judge, Madam Lau Bee Lan in April 2009 and had appealed against her grant of leave for the Judicial Review. Their appeals to Court of Appeal and Federal Court failed. The Federal Court set an exemplary charge on DBKL and Gasing Meridian for legal costs of RM20K each of their failed Federal Court hearing.

Having failed in their arguments that the Judicial Review was filed “out of time” (using deception and by being “economical with the truth”) they had attempted to argue that the High Court had no locus standi to accept the Judicial Review.

One of the core arguments in the Judicial Review was that Town and Country Planning ( Amendment) Act 2001, passed by the Parliament that brings Federal Territories into uniformity with the rest of the country, should have been applied by DBKL with respect to its approval of GMSB proposed development on Bukit Gasing.  DBKL continues to argue they have the right to ignore wishes of our Parliament.

The Mayor of Kuala Lumpur, Datuk Ahmad Fuad Ismail, had recently commented in The Star of how carefully DBKL considers steep hill slope developments. If that is so, how is it that lives were almost lost at Medan Damansara in August 2008? What about the failure of retaining walls at Amanah Raya on Jalan Semantan in December 2008? Will Bukit Gasing be another Damansara 21 in the making?

The Mayor of Kuala Lumpur talks about gazetting of Bukit Gasing as forest reserves and not allowing developments on Bukit Gasing, Yet, all the areas marked in the much challenged Draft KL City Plan seems on the way to being approved.  Is DBKL continuing the policy of being “economical with the truth” ?

Residents in Bukit Antarabangsa, Taman Melawati, Medan Damansara and many other areas on hill slopes live in fear. Yet, authorities continue to champion the land owners’ right to make profit at the expense of safety of people and sustainable development.

Residents under threat from GMSB proposed development and DBKL’s refusal to acknowledge genuine residents’ fears await the High Court to deliver a judgement that puts  planning authorities on notice to act transparently and in act in accordance with the law.

Will you come and stand with us to send a loud and clear message that we want authorities and developers to ensure safe and sustainable development? If you do, please come to the KL High Court Complex, Rayuan & Kuasa-Kuasa Khas (RKK 1 court room) level 3 on Monday, 6th September 2010 at 2:30pm

Gary Yeoh – JAC for Bukit Gasing.

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