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03 October 2012 | last updated at 08:23AM

PUTRAJAYA: A five-year legal battle by 108 Bukit Gasing residents to stop a hill slope project adjacent to their Petaling Jaya neighbourhood has come to an end.

This follows the Federal Court’s decision today to unanimously dismiss a leave application by the residents to appeal against the Datuk Bandar of Kuala Lumpur and a developer.
A five-man bench led by Tan Sri Raus Sharif said the residents failed to cross the threshold requirement under section 96 of the Courts of Judicature Act 1964 to obtain leave to appeal their case in the Federal Court.
The residents posed a question whether the Town and Country Planning Act 1976, and amended in 2001, was applicable to the Federal Territory of Kuala Lumpur.
(The applicants had to show that the question posed was of public interest and that it was being raised for the first time.)
“We are of the view that no further argument is needed as the apex court favoured the majority decision of the Court of Appeal,” he said.
The court also awarded RM10,000 each in costs to the Datuk Bandar who was was represented by Romesh Abraham and the developer, Gasing Meridian Sdn Bhd (GMSB).
Lawyer Datuk R. R. Sethu represented the developer.
Abraham said the Federal Territory Planning Act overruled the Town and Country Planning Act as amended in 2001.
He said residents in Kuala Lumpur could only be heard if there was a change in land use or increase in density.
Sethu said the project was underway since 2010  and the residents had also not filed a stay after they lost in the High Court.
On March 6, the Court of Appeal concurred with the High Court that dismissed the  residents’ judicial review application to challenge the issuance of a development order by the Kuala Lumpur mayor.
Court of Appeal judge Datuk Zaharah Ibrahim delivered a 2-1 majority verdict. Datuk Ramly Ali concurred with her while Datuk Jeffrey Tan Kok Wha, now a Federal Court judge, dissented.
The majority ruling disagreed with the residents’ submission through their lawyer R. Sivarasa that the amended Town and Country Planning Act which stipulated residents should have a right to a public objection hearing extended to the Federal Territory.
Zaharah said the Federal Territory (Planning) Act 1982 was applicable to areas falling under the Federal Territory.
In this Act, a public hearing is possible only if the land is used for other purposes or the proposed move leads to an increase in population density.
Tan in his minority ruling said Kuala Lumpur City Hall failed procedurally by disallowing the residents a public hearing before issuing the order, which falls under the Town and Country Planning Act.
The residents filed the application in 2008 for a judicial review at the Kuala Lumpur High Court to stop the Kuala Lumpur mayor’s development order for a 15.52ha site in Bukit Gasing to build 71 bungalow lots.
The Oct 2, 2007, order was issued to GMSB to execute earth works and subdividing the area, before building the luxury units.
GMSB claimed the land was private and had not been gazetted as a green lung or natural forest.
The residents claimed in the judicial review application that the mayor had failed to give them the right to be heard in the decision-making process.
The High Court dismissed their application on Sept 6, 2010, paving the way for the residents to come to the Court of Appeal.
Bukit Gasing Joint Action Committee member Mohamed Kamar Mohamed said the verdict to deny them leave to appeal overlooked the public interest factor.

http://www.nst.com.my/latest/court-denies-leave-bukit-gasing-development-to-go-on-1.151479#

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

PUTRAJAYA, March 6 (Bernama) — One hundred and eight Bukit Gasing residents today lost their appeal at the Court of Appeal here to set aside the High Court”s dismissal of their judicial review application to challenge the issuance of a development order by the Kuala Lumpur mayor for a hill slope project in that area.

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

Justice Zaharah, who handed down the decision, had disagreed with the submission by the residents” lawyer R.Sivarasa that the amended Town and Country Planning Act 1976 which accorded a right to a public objection hearing to residents extended to the Federal Territory.

Instead, she said the law that applied to the Federal Territory was the Federal Territory (Planning) Act 1982.

This law only accords the right of public hearing when there are changes on the use of the land or an increase in population density of the area.

In a dissenting decision, Justice Tan said there was a procedural failure on the part of the Kuala Lumpur City Hall in not according a public hearing to the residents prior to issuing the development order as required under the Town and Country Planning Act.

The 108 residents filed the application at the Kuala Lumpur High Court for judicial review in 2008 to quash the development order by the Kuala Lumpur mayor pertaining to the Sanctuary Ridge Kuala Lumpur City project on a 15.52ha site in Bukit Gasing.

The mayor, in an order dated Oct 2, 2007 issued to Gasing Meridian Sdn Bhd (GMSB), allowed the developer to carry out earth works and sub-divisions in the area.

GMSB is planning to build 70 bungalows on the site which it claimed was privately-owned land and had never been part of a green lung or a natural forest.

In their judicial review application, the residents claimed that the mayor had failed to take into account that they had the right under Common Law to be given due notice and a chance to voice their opinion in the decision-making process.

They took the matter up for appeal to the Court of Appeal after the High Court on Sept 6 2010, rejected their judicial review application.

One of the Bukit Gasing Joint Action Committee members, Mohamed Kamar Mohamed, said they were disappointed with the decision.

He said the residents would hold a meeting to decide whether or not to bring their case to the Federal Court.

— BERNAMA

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

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

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

 

Link to Photos….

 

KUALA LUMPUR: Gasing Meridian Sdn Bhd (GMSB), the developer of the Sanctuary Ridge Kuala Lumpur City project, comprising 70 bungalows on a 15.5-hectare site in Bukit Gasing, wants Bukit Gasing residents, who lost their legal action against GMSB, to pay damages.

High Court Judge Datuk Aziah Ali set June 24, for re-mention of the application after meeting counsel R. Sivarasa for the 108 residents and counsel Joslyne Goonting for the GMSB, in chambers Friday.

He said the court set for re-mention of the application pending the disposal of the residents appeal over the High Court’s refusal for a judicial review application.

Sivarasa said the GMSB sought damages as it claimed it could not proceed with the project following the legal action by the residents.

“But, we are saying that there is no legal basis for such damages in judicial review. This is not like an injunction, where the court can order damages,” he said.

On Sept 6, last year, Aziah rejected the residents’ judicial review application 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 had ruled, that based on the Federal Territory (Planning) Act 1982, the 108 residents did not have the right to be heard for the development.

The residents later filed for a judicial review in January 2008, claiming that the mayor had failed to take into account that they had the right under Common Law, to be given due notice and a chance to voice their opinion, in the decision-making process.

They claimed that the mayor had acted contrary to the policy and intent of the Federal Territory (Planning) Act 1982.

On April 24, 2009, the residents were granted leave by High Court JudgeDatuk Lau Bee Lan to initiate the judicial review to challenge the mayor’s order.

On Nov 20, 2009, in a 2-1 majority decision, the Court of Appeal dismissed KL mayor and GMSB’s appeal to set aside the High Court order.

Their leave to appeal over the Appeal Court’s ruling was also denied by the Federal Court on March 19, 2010, and the court ordered the case to be heard on merit at the High Court. – Bernama

the malaysian insider

thestar.com.my

bernama.com

Date: Fri, 27 Aug 2010 23:06:43 +0800

Numerous signboards have been put up along Jalan 5/60, numbering the parcels of land, the land size and telephone contact number.

  
The lots for sale along 5/60 belong to the Petaling Garden group and do not form part of the gazette green belt in PJ ( in fact there are some more lots near the sivan temple too). However in my opinion the slopes are too steep to allow and development as looking at it it exceeds in some places class4 slopes which under the Selangor hillslope guidelines is prohibited ( greater than 35deg), class 3 ( 25 to 35 ) is allowed to be dev under strict conditions. I can confirm that to date there is no application to dev this land  and mbpj has not given any approval. If there were there will be a signboard on site calling for public comment and objection. I will certainly let your leaders know if MBPJ receives any and you can object. Be that as it may. Because it is private land there is very little we can do to stop them selling the individual lots to people . I will try to get more details from mbpj planning dept and let u know; If possible a meeting can be arranged to prepare a plan of action. As u are aware apart from this there are several battles taking place now to save the kl side of bukit gasing. One is  in court where yb  sivarasa and I are your lawyers and is awaiting decision. The other has just started in pantai dalam and one is yet to start in the same area. Yes the forest may be cut in half but not without a fight.

Regards,

Derek Fernandez

Chairman – JAC for Bukit Gasing

 

dantang 2010

Reshmonu at Save Bukit Gasing Dinner April 2010

Sat. 10th April 2010 was a night that the community around Bukit Gasing and friends came together to raise funds for our fight with DBKL and Gasing Meridian Sdn Bhd. 
 

We had a “sold-out” night at the Community Hall at Gasing Indah. People from Gasing Heights Condos, Gasing Indah, Pantai Dalam came together to enjoyed good food and entertainment. Many representatives from groups in a similar plight as us (Tmn Melawati, Tmn Hijau, Ampang, Kota Damansara, Medan Damansara and others) together with representatives from Malaysian Nature Society (MNS) and WWF-Malaysia came to support the evening. YB R.Sivarasa, YB Hee Loy Sian, YB Nurul Izzah, Adun Edward Lee and Derek Fernandez, MBPJ Ahli Majlis (Section 5 & 10) were present to show support. 
 

Tan Sri Dr. Salleh Mohd Nor, President of MNS, gave an inspiring speech on our need to conserve our forests and wildlife for future generations. He provided some examples of Malaysia Nature Society’s efforts to conserve and protect many of our historic forests. The recent success in having Kota Damansara Forest gazetted as a forest reserve is an example of NGOs and communities ability to make authorities recognize the importance of conservation. 
 

We had entertainment from enthusiastic “Bollywood” dancers, comprising children and some adult dancers, all drawn from the community in Bukit Gasing. Reshmonu took the stage with specially written song for “Bukit Gasing”. With superb support from his DJ and percussionist, he had the audience singing along to one of his songs. His excellent performance was enjoyed by both young and old in the audience. 
 

The “Dutch Auction” of a painting, netbook and MNS Books were enthusiastically supported with bids (money) collected to match. 
 

The evening was a great success in bringing together almost 300 people demonstrating their continuing support for the battle ahead in our fight for transparency and justice. The generous donations collected from the evening amply proved that the spirit of the community and its friends remain strong and we will not stray from the battle ahead. 
 

JACBG and Save Bukit Gasing Trust Fund wish to thank all that came to the evening and others that were unable to attend but provided donations anyway. We are very much encouraged by the many kind words and appreciation of the event expressed by many as they left the event. 
 

To take on the might of DBKL is not an easy one. To last the journey ahead will remain a challenge. However, with continued support from the community, elected representatives, friends and other concerned citizens, we can and must succeed in turning the tide of wanton destruction of our scarce green lung in PJ and KL. 
 

Gary Yeoh 

JAC for Bukit Gasing 
 

PS: If you wish to support our cause do visit => How you can help us..

More Photos here

2010/03/20 Streets – NST Online

PUTRAJAYA: Bukit Gasing residents have a reason to rejoice.

The merit of their application to object Kuala Lumpur City Hall’s decision to approve a development project will be heard by the High Court.

The Federal Court yesterday unanimously dismissed a leave application by Kuala Lumpur City Hall and a developer to appeal against a Court of Appeal decision last year.

Chief Justice Tun Zaki Azmi said the legal questions framed by the applicants were not novel and of public advantage.

Zaki, who sat with Datuk Seri James Foong and Datuk Md Raus Sharif, also ordered City Hall and Gasing Meridian Sdn Bhd to pay the residents RM20,000 each in costs.

In January 2008, 108 residents filed a leave application for judicial review to quash the development order by the Datuk Bandar pertaining to the hillslope development project.

The Datuk Bandar, in an order dated Oct 2, 2007, issued to Gasing Meridian, allowed the developer to carry out earth works and sub-divisions in the area.

The developer is involved in the Sanctuary Ridge Kuala Lumpur City project to build 68 bungalows on a 15.5ha site in Bukit Gasing.

In their application for leave (in the High Court) the residents, represented by Sivarasa Rasiah and Derek Fernandez, claimed that the Datuk Bandar had failed to take into account that they had a right to be given due notice.

The residents added that as rate-payers they must be given a chance to voice their opinions in the decision-making process of planning.

They said that the Datuk Bandar had acted contrary to the policy and intent of the Federal Territory (Planning) Act 1982.

The High Court granted the residents leave for judicial review in April last year.

The Court of Appeal in November last year, in a majority ruling, dismissed the appeal by the Datuk Bandar and the developer.

Bukit Gasing joint-action committee member Victor Oorjitham said the court would now have an opportunity to hear the substantive application on why the residents objected to the project.

“We have battled in and out of court for more than two years. We now look forward to the hearing in the High Court,” he said. — By V. Anbalagan

http://streets.nst.com.my/Current_News/Streets/Saturday/Stories/20100320004146/Article/index_html

The Star Online

Saturday November 21, 2009  Story and photo by OH ING YEEN

BUKIT Gasing residents triumphed 2-1 in a court appeal against the Kuala Lumpur City Hall (DBKL).

The judge had ruled that DBKL’s appeal against the High Court decision granting leave to residents to challenge a development order on a hillslope project in Bukit Gasing was dismissed in court, said lawyers R. Sivarasa and Derek Fernandez, who represented the residents.

As reported in StarMetro (“Ray of hope for Bukit Gasing folk”) on April 27, the High Court has granted the residents leave to proceed with an application to nullify the development order on a Bukit Gasing project issued on Oct 2, 2007 by the then Kuala Lumpur mayor Datuk Ab Hakim Borhan.

Big day: Bukit Gasing residents rejoicing the appeal court’s decision.

 

However, DBKL and the developer appealed to the Court of Appeal against the “leave” granted by the High Court, Joint Action Committee for Bukit Gasing (JACBG) committee member Victor Oorjitham said.

“It took us nearly 20 months and attending several hearings in court before we were granted “leave” by the court,” said Victor.

“Our stand is that no development of Bukit Gasing should be permitted because of the steep gradient on parts of the hill and unsuitable soil structure comprising sand and shale (compressed mud) and that if development was allowed, there would be landslides affecting the life and property of thousands of residents living close to the hill,” he said.

The residents have been in constant battle for almost two years with the city council and the developer Gasing Meridien Sdn Bhd (GMSB) pertaining to the hillslope development in Bukit Gasing that would affect 108 residents.

Maxwell Towers Joint Management Body (JMB) chairman Ashok Menon said this was a significant case for the country.

“Today is one of the rare days where justice is delivered. This is a matter of safety.

“We need to have a city council that upholds the rights of tax-payers, instead all indications point out that the council is pro-business.

“We are not against development and progress but it should be done in an accountable way,” he said.

According to Menon, previously, the DBKL allowed a public hearing when:

·there’s a change of density;

· there’s a change of land use; and

·anything that affects the residents.

“However, the third ruling was amended 18 years ago, hence residents do not have a say if the development does not affect density or land use.

“All we asked was for a chance to be heard,” he said.

Ashok pointed out that Bukit Gasing bore many similarities to Bukit Antarabangsa such as underground piping.

He fears the possibility of the Bukit Antarabangsa tragedy will befall them if hillslope developments in Bukit Gasing are given the green light.

Resident G. Ong who has been residing in Bukit Gasing for the past six years, was jubilant with the judgment.

“The environment should not be spoiled.

“Think of others and not just of what goes in the pocket. We hope that whoever sits in the judgment can come to their senses,” she said.

One resident remarked that “this is not the end of it”, implying that DBKL and the developers will pursue this matter and take it to the Federal Court.
Fernandez, who is also the Petaling Jaya city councillor, pointed out the differences between Kuala Lumpur and Petaling Jaya.
“Since 2008, there will be public hearings if there were objections to any developments in Petaling Jaya.
“However according to DBKL, this right is limited in KL, unless there’s a change to density or land use.
“Hopefully, this will signify a change where public participation is allowed in DBKL and I hope that this will be streamlined across the country whereby all neighbouring landowners have a right to be heard in any development taking place.
“The people must be heard,” he said.

http://thestar.com.my/metro/story.asp?file=/2009/11/21/central/5155291&sec=central

Nov 20, 09 4:26pm – Malaysiakini

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

Court of Appeal judge Zaleha Zahari and Mohd Hishamudin Mohd Yunus dismissed KL City Hall’s appeal in a 2-1 majority decision, with justice KN Segara dissenting.

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

The residents claimed that the mayor had failed to take into account that they had a right under common law to be given due notice, and be given a chance to voice their opinions in the decision-making process of planning.

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

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

‘Residents have rights’

Lawyers R Sivarasa and Derek Fernandez, appearing for the residents, told the media that the residents should have the right to voice their opinion as there might be landslides affecting the lives and property of those staying near the hill.

Read more: http://www.malaysiakini.com/news/117942

This is Part 2 of report on the Court of Appeal hearing on Wednesday, 11th November 2009

Bukit Gasing response as Respondent to the appeals

Legal counsel for Bukit Gasing, YB Sivarasa Rasiah (supported by Mr. Derek Fernandez),  opened his arguments by bringing the judges attention to the site of the proposed building. Explaining that 3 condos (Fraser, Cameron and Maxwell Towers, total 6 block), houses in Taman Gasing Indah are all in close proximity to the proposed development. In addition, there is a 23 million litre reservoir with a 2 meter diameter pipeline along boundary of the proposed development.  Proposed development will be on steep hill slopes.

The chronology of events was made to the court. He highlighted that the application for the 1st judicial review was submitted  when it became clear that DBKL would ignore their concern for safety and had rejected a public hearing via the hand delivered letter of 31.1012.2007 from DBKL. This was despite the impression given at the 14.11.2007 meeting with Director of Planning KL (Tuan Haji Mahadi) that DBKL would respond to petitions for a public hearing. He highlighted that minutes of the 14.11.2007 (dated 21.11.2007) was provided to DBKL with request for detail of approval for sub-division of land. However, DBKL did not respond to repeated request for information.

YB Sivarasa pointed out that the High Court,  Honourable Judge Madam Lau Bee Lan, had given details of arguments by the parties and her reasons for granting extension of time in her written judgement. The residents only became aware of a DO (in the form of approval of sub-division of land on 2.10.2007) in affidavits from the developer dated 15.4.2008. He stated that residents could not file an application on verbal communication without having details.

During exchanges between counsels and judges, the Honourable Datin Paduka Zaleha commented that the residents did not know a DO was given at the time suggested by the appellants.

YB Sivarasa also confirmed his withdrawal of cross appeal against the dismissal of the 2nd judicial review on the DOs for Hoarding and Earthworks by the High Court.  This was in the context that the Honourable Madam Lau Bee Lan’s written judgement had stated that these two DOs are consequential and purely administrative, resulting from DO for sub-division of land.

With regard to locus standi, YB Sivarasa, highlighted various case histories and that the reasons for application for 1st judicial review are not “frivolous or vexatious”. He pointed out the High Court had considered the arguments presented at the inter partes hearing before grant of leave for judicial review.

Note: The Honourable Judge Madam Lau Bee Lan’s written judgement had highlighted the contention between the parties on whether the Town and Country Planning (Amendment) Act 2001 (Act 1129) or the FT Planning Act (1982) with “1994 Rules” should apply. She concluded these are arguable issues.

YB Sivarasa told the court that numerous guidelines in the Kuala Lumpur Structure Plan (KLSP) were breached in DBKL’s approval of DO to developer. In particular, Policy EN 6 that states “City Hall shall not permit development on hillside with slope that exceeds the allowable level, rules and regulations set by the Federal Government”. The Total Planning and Development Guidelines (2nd Edition) by Ministry of Housing and Local Government (Department of Town and Country Planning, Peninsular Malaysia) states under “Steep Slope Areas” that, “Construction is not permitted in areas on steep slopes (exceeding 25 degrees) “.  In addition, there are common law reasons which were detailed in his submission in response to the appeals.

He highlighted that the Appellants litigating the issues extension of time for leave and locus standi militate against views of Chief Justice in the recent Federal Court judgement of “Majilis Agama Islam Selangor v. Bong Boon Chuen.

In closing responses, DBKL stated that the Kuala Lumpur Structure Plan is not a legal binding requirement when considering the development orders. Counsel for the developer reiterated the key points he had made.

The Honourable Datin Paduka Zaleha, after consulting the other judges moved to adjourn the hearing and fixed  20th November 2009 (coming Friday) at 10:00am to deliver  the court’s decision on the appeals. The hearing ended well after 5:00pm.

Note: The “1994 Rules” is an amendment to the Planning (Development) Rules 1970, made by DBKL (under powers conferred by s 64 of FT Planning Act) after DBKL lost the case between of Datin Azizah v. Dewan Bandaraya Kuala Lumpur[1992] for failure to notify and hear objections from residents before granting development order.

Gary Yeoh

JAC for Bukit Gasing

NST Online » Local News 

2008/04/03

The High Court yesterday granted an interim order to a developer to stop work on a 15.52ha land in Bukit Gasing

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

More…

High Court Photos

http://www.nst.com.my/Current_News/NST/Thursday/National/2202908/Article/index_html  

http://www.malaysianbar.org.my/legal/general_news/court_grants_injunction_to_bukit_gasing_residents.html

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