PUTRAJAYA, April 18 — The Federal Court has quashed the development order granted by the Kuala Lumpur City Hall (DBKL) for a proposed development of a high-rise residential project in Taman Rimba Kiara in Taman Tun Dr Ismail (TTDI), Kuala Lumpur.
A three-member bench comprising Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, Federal Court Judges Datuk Nallini Pathmanathan and Datuk Rhodzariah Bujang, in a unanimous decision today, said there were no merits in the appeal.
The proposed development comprises 9 blocks of high-rise apartments, particularly 8 blocks of 42-54-storey serviced apartments and 1 block of 29-storey affordable apartments, with a basement and podium carpark.
In 2021, the Court of Appeal quashed the development order after it ruled in favour of a judicial review sought by the TTDI Residents Association.
When reading out the judgment, Justice Nallini ruled that the development order ought to be set aside as there was a conflict of interest since the mayor was on the board of trustees for Yayasan Wilayah Persekutuan (YWP), which is one of the four appellants.
Apart from DBKL and YWP, the other two appellants were Memang Perkasa Sdn Bhd and Bukit Kiara Public Housing Residents Association.
Justice Nallini held that when the foundation (YWP) entered into a joint venture agreement with Memang Perkasa prior to the alienation of the land, the mayor knew from the KL Structure Plan 2020 that the land use was green open space for public use.
“The alienation of the land to YWP in conjunction with the joint venture agreement with Memang Perkasa would entail a change in land use to mixed development. However, there was no compliance with the Federal Territories Act in terms of variation or amendment to the KL Structure Plan 2020.
“The mayor, therefore, wore three hats in three capacities, namely, the mayor was part of the entity that approved the subject land’s alienation, the mayor was part of the applicant for planning permission, YWP as it was a member of the board of trustees, and the mayor was also the entity that granted the impugned development order on July 13, 2017,” she added.
Justice Nallini also said that the decision-making behind the development order was flawed as it violated a requirement under the Federal Territories Act to inform members of the public and let them participate in the planning process.
This is particularly so in the present appeal where the local authority departed from the KL Structure Plan 2020 in issuing the development order, the judge added.
“The public ought not to have to wait until they file legal proceedings for the authority to then give reasons in the course of the legal proceedings. We hold that as public authorities act in the public interest, such authorities owe the public a duty of candour in judicial review proceedings to make full and fair disclosure of all relevant materials,” she said.
Justice Nallini said such authorities have a primary duty to assist the court with all the materials necessary to enable the court to arrive at an accurate decision.
She said when the court finds of its own accord that there are issues relevant to the case which have not been brought to its attention, the court cannot be precluded from considering and deciding on such issues.
Justice Nallini also insisted that the TTDI residents have the legal standing to sue, as they had a genuine interest in the land.
The judge said it is incumbent upon the court to protect the public interest when land allocated for public space is removed from public use and utilised for private ownership, that too without the knowledge of the public.
“We have found the reasons stated in our full grounds of judgment that the Federal Territories Act and the KL Structure Plan 2020 have been contravened by the issuance of the impugned development order. It is therefore null and void and was correctly quashed by the Court of Appeal,” said Justice Nallini.
The court then ordered DBKL to pay RM100,000 in legal costs to the residents, while YWP and Memang Perkasa have to pay RM80,000 and RM70,000, respectively.
On January 27, 2021, the Court of Appeal set aside the November 28, 2018 decision of the High Court which dismissed the judicial review brought by the residents to quash the conditional planning permission and development order by DBKL.
The residents filed the judicial review application on August 11, 2017, through the management bodies of Trellises Apartment, Kiara Green Townhouses, Residence Condominium, TTDI Plaza Condominium, The Greens Condominium, as well as TTDI Residents Association and four TTDI residents and home owners.
They named DBKL, the foundation, Memang Perkasa and the Bukit Kiara Public Housing Residents Association as respondents in the judicial review.
The residents sought a certiorari order to quash DBKL’s development order as they claim that the 10.08ha Taman Rimba Kiara is a public park located in TTDI and Bukit Kiara area and a green lung of Kuala Lumpur.
The residents were represented by lawyer Datuk Gurdial Singh Nijar, while B. Thangaraj appeared for DBKL.
Counsel Tan Sri Cecil Abraham represented the foundation, while Khoo Guan Huat acted for Memang Perkasa and Jayanthi Balaguru for Bukit Kiara Public Housing Residents Association.
Youth and Sports Minister Hannah Yeoh, who is MP for Segambut, was present during today’s online proceedings.
— Bernama
