A landmark Court of Appeal decision is set to not only change how Kuala Lumpur City Hall approves development projects but also open the floodgates of litigation for aggrieved residents.
This is especially so for those affected by controversial projects linked to Yayasan Wilayah Persekutuan under the previous Barisan Nasional government.
The unanimous ruling by a three-member bench yesterday declared a public objection hearing on a highrise project conducted by City Hall on Feb 27, 2017 to be null and void. This was because City Hall had failed to furnish to residents pertinent documents, including proposed layout plan, development proposal report, traffic and social impact assessment reports, ahead of the hearing.
The said court decision was on a judicial review application filed by Taman Tiara Titiwangsa residents against City Hall over the proposed project.
The bench comprising Datuk Abdul Rahman Sebli, Datuk Mary Lim and Datuk Hasnah Mohammed Hashim overturned a Kuala Lumpur High Court decision, stating that the rules of natural justice apply and entitle applicants to obtain the said documents to present their objection.
The court also declared there was an element of bias as the then Kuala Lumpur mayor (Tan Sri Mhd Amin Nordin Abdul Aziz), was a decision maker and sat as a director/trustee for Yayasan Wilayah Persekutuan – the landowner of the project.
Taman Tiara Titiwangsa residents Datuk Mohamad Yusof A. Bakar and Lim Cheng Im, who were represented by lawyers David Samuel, R. Thanasegar and L.S. Leonard, had in their application in May 2017 sought for the court to declare that:
- City Hall had failed to act fairly under the rules of natural justice in conducting a public hearing.
- City Hall could not or ought not to make a decision pertaining to the objections raised by the applicants as it was a conflict of interest and would offend the rule against bias.
- City Hall’s act of exercising its discretionary powers, on the Federal Territories Minister’s instructions, was tainted with procedural impropriety and irrationality (The minister himself was implicated as an interested party who would gain from City Hall approving the proposed development).
In welcoming the court’s decision, Lim said the aggrieved public could now exercise their rights by having a say, unlike previously.
“City Hall had at that time turned down our request for the traffic impact assessment report. How do we prepare for a hearing if we have no access to important documents?” she asked.
Another resident, Sylvester Navaratnam, said the case would have a huge implication on the approval of development projects in the city.
“The court decision is a huge victory for the entire Kuala Lumpur as it will give room for the public to prepare sound fact-based arguments before attending public objection hearings called by City Hall.”
Under Rule 5, the mayor must refer to registered owners of the adjacent land where a project is set to take shape through advertisements in newspapers and exhibitions. This is to invite objections pertaining to conversion of land use, zoning and increase in density.
Local government expert Derek Fernandez said the court’s decision would have a “huge impact all over”.
Fernandez, who represented the residents during the objection hearing in Feb 2017, said the decision had not only set a precedent for all future development projects but also raised a huge question on the role played by Yayasan Wilayah Persekutuan.
This included those who sat on the board as they comprised not only the mayor, but also the Federal Territories Minister and his deputy.
“If you have an interest in the subject matter where you are making the decision (approval of project), it raises the issue of bias. The then FT Minister (Datuk Seri Tengku Adnan Tengku Mansor), his deputy (Datuk Loga Bala Mohan) and the mayor were among the directors in Yayasan Wilayah Persekutuan,” he said.
The controversy erupted in 2017 when Taman Tiara Titiwangsa residents cried foul over the highrise project claiming the development site had been marked as an open space and community centre under the Draft Kuala Lumpur City Plan.
The land in question, owned by Yayasan Wilayah Persekutuan, was subsequently transferred to a private developer to build two 51-storey condominium blocks comprising 1,702 units and a 40-storey block with 460 affordable homes under the ministry’s Rumawip initiative.
The foundation had in a news report in 2017, insisted there was no conflict of interest.
Its chief executive officer Datuk Roslan Hassan had then said although Tengku Adnan, Loga Bala and Mhd Amin were on the board, they were ex-officio members.