In less than three weeks, the Federal Court is set to announce its final verdict on the proposed mega development of the Taman Rimba Kiara project.
The case began in late 2017 when 10 applicants filed a judicial review application against Kuala Lumpur City Hall to quash the development order it granted in respect of the project. The applicants submitted the following grounds why the development order should be quashed:
IT is irrational, unreasonable and is not in accordance with applicable laws;
IT contravenes the Kuala Lumpur Structure Plan and Kuala Lumpur Local Plan;
IT will destroy the green lung of Taman Rimba Kiara, and degrade the surrounding area;
IT will increase the congestion and pollution levels, reducing the value of the properties in Taman Tun Dr Ismail (TTDI); and,
THERE is a conflict of interest.
On Nov 28, 2018, the High Court dismissed the application on the following grounds:
THE law does not impose a duty to give reasons since the case does not fall under Section 22(5) of the Federal Territory (Planning) Act 1982 (Act 267);
THE KL Structure Plan "need not be slavishly followed", and the KL Local Plan has not been gazetted; and,
SINCE the Datuk Bandar did not sit in any of the meetings in relation to the application for the development order, there was no conflict of interest.
Aggrieved by that decision, the applicants appealed to the Court of Appeal, which allowed the appeal and held as follows:
UNDER Order 53 Rule 2 (4) of the Rules of Court 2021, anyone "adversely affected" by the proposed development has a locus standi;
THERE is only one test for judicial review, and the High Court judge had failed to apply the correct test;
THE Datuk Bandar has a common law duty to notify and hear objections;
THE duty to give reasons emanates from the concept of fairness;
THE absence of express provisions in the law (duty to give reasons) should not be a cloak to hide the rationale of the project;
GIVING reasons without being compelled is not just grounded in fairness, but is a requirement of good administration;
REASONS should be given at the time the decision was communicated;
IF reasons are not given, an applicant for judicial review is prima facie entitled to have the decision quashed;
THE development order granted by City Hall is disproportionate to the purported resolution of the Bukit Kiara longhouses' issue;
THE proposed development is a pure business and commercial joint venture between two entities; and,
THE chronology of how the development order came to pass clearly proves the existence of conflict of interest.
For those reasons, the Court of Appeal concluded that there is "appealable error", and set aside the decision of the High Court.
Against that unfavourable decision by the Court of Appeal, City Hall sought leave to appeal to the Federal Court and was granted it in September last year.
In late January this year, the Federal Court stated that it had fixed April 22 and 28 to hear the appeal. Earlier this month, the Federal Court allowed an application by TTDI residents to use the Auditor General's Report 2019 and the addendum to the Kuala Lumpur City Plan 2020 in their case against the appellants.
On March 22, a news portal commented that City Hall had spent RM1.1 million fighting the TTDI residents over the Taman Rimba Kiara project, describing it as a waste of "public funds to op-pose taxpayers". Now more money will have to be spent "to pursue the appeal at the Federal Court".
The portal quoted the residents as expressing "dismay and disappointment at the egregious use of public funds by City Hall to fight the public in court".
These public funds could have been used for many other needs, including housing, infrastructure improvement, road repairs, Covid-19 support, among others, said the residents.
Town planner Nik Ramly asked me recently of my expectations of the final verdict. I told him, "I hope the Federal Court will uphold the decision of the Court of Appeal".
The decision is viewed by many quarters as one of the most important planning law decisions of the decade, if not the century.
The writer was a federal counsel at the Attorney-General's Chambers and visiting professor at Universiti Teknologi Malaysia. He is now a full-time consultant, trainer and author
