KUALA LUMPUR, April 18 — The Federal Court today allowed a group of Taman Tun Dr Ismail (TTDI) residents to quash a development order for a luxury service apartment project on a plot of land in the Taman Rimba Kiara recreational park here, putting an end to a protracted dispute that has lasted almost six years.
The unanimous decision was delivered by a three-person Bench led by Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, along with Federal Court judge Datuk Nallini Pathmanathan and Federal Court judge Datuk Rhodzariah Bujang.
“In conclusion, we affirm the decision of the Court of Appeal,” Nallini said, reading aloud the court’s judgment.
In today’s hearing conducted by way of video-conferencing, Nallini said it was 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 even when it’s done without the knowledge of the public.
“We have found for the reasons stated in our full grounds of judgment that the Federal Territories Act (FT 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,” she said.
The court had also assessed the legality of the mayor’s acts against the relevant affidavits filed, which Nallini said offered little insight into how or why the mayor exercised its discretion in deciding to grant the impugned development order.
“The affidavits do not explain why the Datuk Bandar utilised an old development plan known as the comprehensive development plan (CDP) instead of relying on the KL Structure Plan 2020 which had been gazetted.
“More so when the CDP contravened the KL Structure Plan.
“In summary, there was little, if any disclosure in the affidavits of the Datuk Bandar as to the basis or reason for its departure from the statutory development plan which is a prerequisite under Section 22 of the FT Act,” she said.
Nallini also disagreed with the appellant’s argument that the KL Structure Plan 2020 comprises mere policy that has no force of law, stating that the aforementioned plan does indeed have the force of law and is binding.
Under the KL Structure Plan, Taman Rimba Kiara was meant to be a public park.
“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.
“Parliament, by embedding into the FT Act a mandatory process of public participation, ensures the inclusion of the public’s views on the proposed plan.
“Once gazetted, there is no room for extraneous matters to be inserted at will, nor for development planning on an inconsistent and piecemeal basis,” she said, adding that the mayor had erred in his decision to grant the development order.
She also said the KL mayor was not in a position to rely on the lack in housing provision for longhouse settlers to justify the granting of the impugned development order, when 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.
“In light of our conclusions on the contravention of the FT Act, we determined that the issue of housing for them is a separate obligation owed by the state to the settlers,” she said.
On the issue of conflict of interest, Nallini said there is a difference between personal and institutional conflicts of interest despite the appellants arguing otherwise.
She held that the mayor wore ‘three hats’ in three capacities, namely he was part of the entity that approved the subject land’s alienation; part of the applicant for planning permission and the entity that granted the impugned development order.
“The appellants invited the court to consider that the Datuk Bandar himself did not sign the impugned development order and did not sit in on the meetings which decided on granting planning permission for the subject land.
“However, pursuant to section 5 of the Federal Capital Act 1960, the Datuk Bandar as a corporation sole is an institution.
“It is the institution of the Datuk Bandar that approves planning permission applications, not the Datuk Bandar the person.
“The fact that the person then holding the position of the Datuk Bandar did not sign the impugned development order and did not sit in on the planning permission meetings does not cure the institutional conflict of interest in this case,” she said.
The court also ruled that TTDI residents have the legal standing to sue, as they had a genuine interest in the subject land.
In their judicial review application filed in 2017, the residents sought to quash the development order for the proposed development project — consisting of a 29-storey apartment block with 350 units of affordable housing, as well as eight blocks of service apartments and eight storeys of parking facilities.
The proposed project was first introduced during Datuk Seri Tengku Adnan Tengku Mansor’s tenure as federal territories minister in 2016.
They claim that the 10.08-hectare Taman Rimba Kiara is a public park located in TTDI and Bukit Kiara area, and the proposed development would increase the density of TTDI and irreversibly degrade Taman Rimba Kiara as a green lung.
The residents initially lost their case in the High Court on November 28, 2018, but filed an appeal.
The Court of Appeal then ruled in favour of the residents on January 27, 2021. They are listed as the management bodies of Trellises Apartment, Kiara Green Townhouses, Residence Condominium, TTDI Plaza Condominium, The Greens Condominium, TTDI Residents Association and four TTDI residents and house owners.
But the Kuala Lumpur City Hall, together with the developer Memang Perkasa Sdn Bhd and land owner Yayasan Wilayah Persekutuan appealed against the appellate court’s decision to reinstate the development order for the project.
The court 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.
Lawyer Datuk Gurdial Singh Nijar appeared for the residents.
B Thangaraj appeared for the mayor. YWP was represented by Tan Sri Cecil Abraham while Khoo Guan Huat represented Memang Perkasa.
