No development over Taman Rimba Kiara after apex court verdict

The Federal Court has dismissed an appeal by the Kuala Lumpur City Hall (DBKL) and three others to reinstate the controversial development order over parts of Taman Rimba Kiara.

A three-person apex court bench chaired by P Nallini this morning unanimously denied the appeal and upheld a 2021 Court of Appeal ruling that permitted 12 Taman Tun Dr Ismail (TTDI) residents to set aside the development order.

Previously, the TTDI Residents' Association had hailed the Court of Appeal decision as a major victory in the fight to preserve the public park.

Dated July 13, 2017, DBKL issued the development order for eight blocks of high-end serviced apartments and 29-storey apartments, comprising 350 affordable housing units to be built on the land.

The other members of the apex panel are Mohamad Zabidin Mohd Diah and Rhodzariah Bujang.

In reading out the unanimous ruling, Nallini said 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, which is one of the four appellants today.

Besides DBKL and Yayasan Wilayah Persekutuan, the other two appellants were developer Memang Perkasa Sdn Bhd and an association representing longhouse residents in Taman Rimba Kiara.

She noted that when the foundation entered into a joint venture with Memang Perkasa prior to the alienation of the land, the mayor knew from the KL Structure Plan 2020 that the land was for green space for public use.

Nallini pointed out that the alienation of the land to Yayasan Wilayah Persekutuan in conjunction with the joint venture agreement 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 judge 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.

The judge surmised that a conflict of interest and/or bias is made out on the facts of the present appeals.

Nallini noted that the mayor’s affidavits to the court offered little insight into how or why there was an exercise of discretion to grant the development order over parts of Taman Rimba Kiara.

The judge said the apex bench disagreed with the appellants’ contention that the TTDI residents have no locus standi (legal standing) to file the legal action, noting that locus standi ought to be broadened in order to enable deserving cases to reach the courts, “particularly in this case which involves planning and environmental law which undisputedly is of concern to all of us”.

“With respect to the present appeals which relate to the grant of planning permission in respect of parkland which has been alienated for a private mixed commercial development, the corollary would be ‘Who will speak for the hornbill?’

“In light of having broadened the rules of standing to sue, members of the public who can show a genuine interest in the matter and who have the expertise or knowledge to raise objections in relation to planning would be entitled to bring this judicial review application.

“We have considered in considerable detail the standing of the various respondents and find that they each have a genuine interest in the subject land and thus have locus standi,” she said.

Flawed decision-making

Nallini pointed out 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 appeals 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.

Nallini said such authorities have a primary duty to assist the courts with all the materials necessary to enable the courts 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.

“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 for 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,” Nallini said.

The bench also ordered DBKL, Yayasan Wilayah Persekutuan and Memang Perkasa, to pay costs of RM100,000, RM80,000 and RM70,000 respectively to the respondents.

The court today however made no order to costs in relation to the other appellant, namely the association representing the longhouse settlers.

Several protests were held in 2016 and in subsequent years against the proposed development of Taman Rimba Kiara.

During the Pakatan Harapan federal administration, then federal territories minister Khalid Samad proposed a scaled-down development and called it a “win-win solution” as it saved the ministry from having to compensate the developer RM150 million if the project was cancelled.

The project was reduced from 4.9ha to 3.2ha. Taman Rimba Kiara spans 10.1ha.

DBKL, Yayasan Wilayah Persekutuan, Memang Perkasa and the longhouse residents' association were represented by counsel B Thangaraj, Cecil Abraham, Khoo Guan Huat, and Jayanthi Balaguru respectively.

The TTDI residents, who comprised part of the respondents today, were represented by lawyer Gurdial Singh Nijar.

Youth and Sports Minister Hannah Yeoh was present during today's online proceedings.

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