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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.
Please be informed that the scheduled leave hearing for our appeal to Federal Court on the matter of High Court award of damages assessment has been cancelled.
Federal Court is in the process of re-scheduling the hearing.
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
By Stephanie Sta Maria
KUALA LUMPUR (Jan 29): Property developer Gasing Meridian has shot down news reports that have linked its development work to recent landslides in Bukit Gasing.
Posted on 29 January 2013 – 08:38pm
Last updated on 30 January 2013 – 12:31am
EVERY time it rains, colleagues in the office get phone calls from those staying around Bukit Gasing in Petaling Jaya. Most of us are familiar with the callers. It’s either erosion of parts of the hill or fear of landslides.
Speculation or otherwise, clearing hillslopes and building on them always invite public scrutiny and inevitably, bad news. Even the slightest trace of gravel on the road is enough to prompt calls but as a matter of fact, if you see bare slopes of the hill being washed down, what appears to be unfounded, becomes founded.
As this column is being written, there’s a visit to the area by the local MP and other party officials.
Despite sustained opposition from residents and environmentalists since 2005, the developer Gasing Meridian Sdn Bhd began earthworks on the Sanctuary Ridge Kuala Lumpur City project two years ago.
It had appointed consultant Ikram Engineering Services Sdn Bhd to monitor the construction of 69 bungalows on the 15ha land, which is supposed to put in place mitigation measures to ensure slope stability.
Kuala Lumpur City Hall (DBKL) admitted it could do nothing to stop the development in Bukit Gasing because doing so would require buying the land out of public funds.
Mayor Datuk Ahmad Phesal Talib was quoted as saying that DBKL had initially opposed the project, but now has no choice but to abide by a court order.
“(The developer) Gasing Meridian Sdn Bhd has already won the court case, how can we stop it?” he asked.
“Now we have to let Gasing Meridian to execute the project but with precautions. If we try to stop them we have to issue a notice of purchase.
“Who is buying? The public.”
Ahmad Phesal is echoing his predecessor, Tan Sri Ahmad Fuad Ismail who said: “The land belongs to the developer and DBKL would have to spend RM135 million if it were to acquire the land to gazette as a green lung.”
He said DBKL had already applied to gazette the neighbouring 52.6ha public land as a green lung in December 2010.
Ahmad Phesal is right and wrong. He’s right in the sense that the developer won a court case. Wrong in the sense that he does not want to admit that DBKL has become its own victim after amending the planning laws to suit its needs and to silence residents who wanted to express their views on safety.
DBKL moved the goalposts or changed the law after the then Supreme Court ruled against it in 1992 in the case of Datin Azizah Abdul Ghani v Dewan Bandaraya Kuala Lumpur & Others over its refusal to not allow her to take part in the planning decision making process.
The rules had provided that upon receipt of any application for planning permission, DBKL should inform the registered proprietors of the land adjoining the land to which the application relates, to enable them to exercise their right to object to the granting of planning permission.
Azizah, as an adjoining neighbour applied for an order of certiorari to quash the decision of the mayor on the grounds that she was never given an opportunity to object, since she never received the DBKL notice calling for objections.
In 1994, DBKL changed the law and the right to a public hearing was narrowed down to two limbs – if there is a change in land use and if there is an increase in residential density.
This, in short, DBKL used its unfettered powers to amend the laws and now finds itself in this predicament. If those living in Gasing Hill had been allowed to present their case vis-à-vis safety, the mayor and his team would have had some cause not to issue the development order.
Today, the DBKL has discovered that its hands and feet have been bound; their mouths and ears have been stuffed; and they have no authority to listen to the people.
They have belatedly discovered that they had used a sledgehammer to swat a fly and in the process destroyed the basic principle of the right to be heard.
Will DBKL reinstate its laws which will be consistent with the Town and Country Planning Act which governs the rest of the country? Will it learn from its mistakes? How can it happen when there are 3,000 development projects under its jurisdiction and that’s plenty of money floating around?
R. Nadeswaran has nothing against developers or development which does not threaten the safety of those living in the neighbourhood. Comments: firstname.lastname@example.org
Close-up: a section of the slope has slipped due to erosion…..
Landslip at Maxwell Towers. Gasing Heights. Photo Credit: GYeoh
For the last 3 days, we at Bukit Gasing area have had heavy downpours. Today, just after the afternoon’s downpour, a landslide occurred within meters from Maxwell Towers. There was also a landslide along Jalan 5/60 towards Fraser Towers. There have been numerous other landslides on Bukit Gasing recently that have been in the press. MBPJ had met with residents last year and we understand they are still investigating and determining the right course of action to protect lives and properties. With the landslides today, we are expecting urgent steps to be take to make the slopes safe on Bukit Gasing – PJ side.
DBKL has so far ignored evidence of landslides on Sanctuary Ridge development site. This blog had featured landslips on the steep slopes of earthworks done by the developer. Alas, we have seen little tangible evidence of DBKL being concerned at all these landslides.
The most recent disaster at Bukit Setiawangsa should have been a reminder to the Mayor of KL to be concerned about steep hill slope developments. Will DBKL wait for fatalities before they react to the many signs that development on steep hill slopes of Bukit Gasing is unsafe? Will the Mayor act to protect lives and properties or will he hide behind legalities?
JAC for Bukit Gasing.
From the various press reports, one might believe that safety of the residents adjacent to steep hill slope developments are of concern to the authorities of Kuala Lumpur. They should sleep easy when we have monsoon rains as like now.
Let’s review what the residents next to steep hill slope developments have observed just this year.
In March of this year, a landslip was recorded in this blog. For DBKL, there was no landslip, merely repairs to earthworks.
Also during March, landslides and floods were recorded. Was there urgency to enforce safety regulations and alleviate the frustrations of KL residents by the Minister of FT and Urban Wellbeing?
What this blog did not record out of frustration was a further landslip in May this year in the same area as the landslip in March. Yet, all the Mayor of KL could say now is that if there is a breach of safety regulations, a stop order will be issued.
This blog recorded the landslip that occurred over last weekend. The photos are here to be seen. Is it possible that residents were having delusions of landslips when the developer was merely being diligent in covering the steep hill slopes that they cut to deter rain from seeping into the soil? Why only after the events captured here on this blog? Yes, one does need to put thinking cap on here.
Are plastic sheeting now a DBKL approved method as a safety regulation? One might think it is as the Mayor claims no safety regulation has been breached.
Frankly, we don’t feel we want a Medan Damansara incident to have the authorities review and provide reassurance of their care for our well being.
If the Mayor of KL is sincere, please advise us what the safety regulations are and what the “IKRAM” (or the DBKL daily monitoring) standards are to make the development safe. This could all be done transparently in a public hearing.
Highland Towers collapsed because of steep hill slope development next to it. It did not fall because of the towers themselves were unsafe.
We are not the only residents near steep hill slopes fearing for their safety. Do read the Star article of 24th October 2012 . The fears of Bukit Bandaraya, Bangsar residents are just as real.
Let’s not forget the plight of the resident in Section 10 of Wangsa Majo either.
Please Mr. Mayor, we can’t all be deluded.. or can we?
PS: Do click the highlighted links to read articles related to this blogpost.
JAC for Bukit Gasing.
Wednesday November 7, 2012
By FAZLEENA AZIZ
Muddy times: Residents are concerned over potential landslips at the Sanctuary Ridge project during the rainy season.
THE Kuala Lumpur City Hall (DBKL) is ready to issue stop-work order to developers who fail to comply with safety regulations, said Kuala Lumpur mayor Datuk Ahmad Phesal Talib.
He said with the monsoon season hitting the city, developers should be more cautious when carrying out earth works especially at hillslope areas.
Phesal was speaking to reporters after visiting the Sanctuary Ridge project site by Gasing Meridien Sdn Bhd in Kuala Lumpur after residents had expressed their fear of landslip during the rainy season.
“DBKL is closely monitoring the development and the Federal Territories and Urban Wellbeing minister is also serious about ensuring safety at the sites.
There is another development nearby which is also contributing the dust and congestion with heavy vehicles passing in and out of the site.
“The developer is taking precautionary measure by placing the tarpaulin sheets.
“We also have a case with the MRT developer near Bank Negara with soil dumping, which we have stopped.
“The land belongs to the government but they did not obtain permission from DBKL for soil dumping,” he said.
Phesal added that there should be constant communication between the developer, contractor and residents to address issues.
Resident T. Sivakumaran, 48, who lives nearby the development complained about the dust coming into his home.
He said although the developer and contractor had discussed the matter, nothing was done.
“It has been a year now. I hope they can do something to sort out the dust problem by putting a screen,” he said.
Meanwhile Gasing Meridien director Kenneth Tan cleared the air about landslip. He said they were clearing part of the hill for the development.
Tan added that the clearing will be done in stages and contractors were required to submit reports for every 50m of works carried out at the site.
“Water containment is built together during the soil work at the slope in multiple stages. To ensure there is proper water flow, we have designed a channel with a silt trap at the south east corner.
“We want to esure the safety of the neighbourhood and we will take the necessary precautions,” he said.
Tan added they are ready to stop work at anytime if the development fails to comply with the safety standards set by authorities.
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.