- According to the apex court's judgement read by Nallini, the development order ought to be set aside because the mayor was a trustee of YWP.
KUALA LUMPUR (April 18): The Federal Court, in a unanimous decision, has quashed an appeal by the Kuala Lumpur City Hall (DBKL) to reinstate the proposed Taman Rimba Kiara development project.
A three-judge bench led by Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, in delivering the court’s decision, said there are no merits in the appeal brought by DBKL.
The other members of the bench were judges Datuk Nallini Pathmanathan and Datuk Rhodzariah Bujang.
This appeal concerns a Jan 27, 2021 decision by the Court of Appeal that overturned an earlier decision by the High Court on Nov 28, 2018 rejecting a joint bid by Taman Tun Dr Ismail (TTDI) residents for a judicial review to get a certiorari order to quash the conditional planning permission and development order issued by DBKL.
This meant that the appellate court had quashed DBKL’s development order to Memang Perkasa Sdn Bhd for luxury service apartments to be built in Taman Rimba Kiara, which was upheld by the Federal Court on Tuesday (April 18).
The development order issued by DBKL in 2017 was for the construction eight blocks of luxury serviced apartments of up to 52 storeys, one block of affordable housing and an eight-storey podium car park.
The proposed project was first introduced during Datuk Seri Tengku Adnan Tengku Mansor’s tenure as federal territories minister in 2016.
TTDI's resident associations had objected to the development, claiming that it will significantly increase the density of TTDI and irreversibly degrade Taman Rimba Kiara as a green lung.
To develop the land, Yayasan Wilayah Persekutuan (YWP) as the landowner of Taman Rimba Kiara had entered into a joint venture (JV) with Memang Perkasa. Under the JV, Memang Perkasa was to pay RM160 million to YWP in stages. But the YWP-Memang Perkasa JV had to get approval from DBKL to develop Taman Rimba Kiara.
Memang Perkasa is a subsidiary of Malton Bhd.
Conflict of interest found
The appellate court observed conflict of interest, in that the applicant and the approving body was the same. It found that both the mayor and the federal territories minister sat on YWP's board of trustees.
According to the apex court's judgement read by Nallini, the development order ought to be set aside because the mayor was a trustee of YWP.
“We concluded that there was a conflict of interest and/or bias afflicting the decision of the Datuk Bandar (mayor), which is a separate and independent ground of challenge. It therefore follows that on this ground alone, the impugned development order is void and ought to be set aside,” she said.
“The mayor, therefore, wore three hats in three capacities: the mayor was part of the entity that approved the subject land’s alienation, the mayor was part of the applicant for planning permission ie Yayasan Wilayah Persekutuan as it was a member of the board of trustees, and the mayor was also the entity that granted the impugned development order,” she added.
Nallini said the development order had contravened the Kuala Lumpur Structure Plan 2020 which was also against the Federal Territories Act, because they had changed the land use to grant the development order when it was earmarked in the KL Structure Plan 2020 as green open space for public use.
“Having considered the legislative history and purpose and object of the FT (Federal Territories) Act, we are of the view that the structure plan is a legally binding document which a planning authority must comply with,” she said.
The court ruled that the mayor, instead of relying on the structure plan, had relied on the dated comprehensive development plan (CDP) to authorise the development order.
“In short, the CDP has no relevance to the grant of a development order in relation to the subject lands because it is inapplicable to the same. There is no basis in law for the Datuk Bandar to rely on Section 22(4) [of the] FT Act to justify use of the CDP,” she said.
“The appellants submit that the KL Structure Plan 2020 comprises mere policy that has no force of law. We found in our full grounds of judgement that the KL Structure Plan 2020 as a statutory development plan does have the force of law and is binding. To give development plans their own force of law is to ensure that planning in the federal territory is achieved pursuant to cohesive planning principles,” she said.
“We have found for the reasons stated in our full grounds of judgement 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,” Nallini said.
She also added that it was incumbent upon the court to protect public interest when land allocated for public space is removed from public use and utilised for private ownership without the knowledge of the public.
Housing for settlers a 'separate obligation by the state'
One of the issues in this case is that of former workers of a rubber estate who were rehoused in longhouses in a corner of Taman Rimba Kiara. They were promised permanent housing by the State Authority, which did not transpire. The now quashed development was expected to resolve this promise by the construction of a 29-storey block to house all the residents of the longhouses.
However, Nallini said that issue of housing for them is a separate obligation owed by the state to the settlers.
She also said the mayor should not rely on the issue of lack of provision of housing for them to justify the grant of the impugned development order where such an order has the effect of converting what was meant to be a public space for public use to a mixed development for private purposes.
The bench also ordered DBKL, YWP and Memang Perkasa to pay costs of RM100,000, RM80,000 and RM70,000 respectively to the respondents in the suit.
There was no order as to costs for the longhouse residents.
Segambut Member of Parliament Hannah Yeoh tweeted “We won” after the decision was read out in Zoom proceedings.
"Taman Rimba Kiara at Federal Court - We WON today for its preservation as a public park! A battle that has taken us more than 5 years. For me, this is also a battle against the might of those with deep pockets and we prevailed,” she said.
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