ADMINISTRATIVE LAW
Decision – Mayor of Kuala Lumpur
– Development Order – Condominiums – Taman Rimba
Kiara – Judicial Review –
Certiorari
Datuk Bandar Kuala Lumpur & Ors v Perbadanan
Pengurusan Trellises & Ors.
Civil Appeal No. 01(f)-13-09/2021(W) | Federal Court
- see the grounds of judgment here
Facts As the relevant local authority, the
Datuk Bandar Kuala Lumpur ('Appellant')
granted a development order ('Impugned Development
Order') for a proposed development which comprises a
part of, and is located within, a public park known as Taman Rimba
Kiara. The subject land was owned by the State Authority of the
Federal Territory of Kuala Lumpur, before being alienated by that
authority to Yayasan Wilayah Persekutuan for a premium of
approximately sixty million ringgit. Perbadanan Pengurusan
Trellises and other neighbouring properties and persons in Taman
Tun Dr Ismail ('Respondents') sought to
quash the grant of permission for the proposed development,
primarily on the basis that it did not conform to or comply with
the statutory provisions of the Federal Territory
(Planning) Act of 1952 ('FT Act'). At
the High Court, the learned Judge refused to quash the grant of
planning permission and dismissed the judicial review. Aggrieved
with the decision, the Respondents subsequently filed an appeal at
the Court of Appeal, where the decision of the High Court was
reversed and an order quashing the decision of the local authority
was granted. Hence this appeal.
Issues 1. Whether Order 53 rule
2(4) of the Rules of Court is confined
to the determination of threshold locus standi or whether it
extends to confer substantive locus standi upon an applicant in an
application for judicial review.
2. Whether an applicant seeking judicial review of a development
order is required to come within the terms of Rule 5(3) of
the Planning Rules 1970 before he or she may be granted
relief.
3. Whether the requirement of locus standi in judicial review
proceedings set out in Order 53 Rule 2(4) of the Rules of
Court 2012 may override the provisions of Rule
5(3) of the Planning Rules 1970.
4. Whether a management corporation or joint management body has
the necessary power and locus standi to initiate judicial review
proceeding to challenge a planning permission granted on a
neighbouring land which does not concern the common property of the
management corporation or joint management body.
5. Whether the Kuala Lumpur Structure Plan is a legally binding
document which a planning authority must comply with when issuing a
development order.
6. Whether, in the absence of a statutory direction to the
contrary, a planning authority in deciding to issue a development
order is under a duty at common law to give any or any adequate
reasons for its decision to persons objecting to the grant of the
development order.
7. If the answer to Leave Question No. 6 above is in the
affirmative, then whether the reasons must be conveyed to the
objectors at the time of its communication or whether reasons may
be given in an affidavit opposing judicial review
proceedings?
8. Where the High Court in judicial review proceedings negatives
actual bias or a conflict of interest on the part of an authority
issuing a development order, is a Court of Appeal entitled to hold
that there nevertheless would be a likelihood of bias
Held In dismissing the appeal and affirming
the decision of the Court of Appeal save for the issue of title to
sue in relation to the first to fifth respondents, the Federal
Court held that since the subject land was designated as an
'open space', marked as a green area in the Structure Plan
and was utilised by the public as a park, it was held by the State
Authority of the Federal Territories of Kuala Lumpur on trust for the
public. "Open Space" is defined
in s. 2 of the FT Act as any land whether
enclosed or not which is laid out (or reserved for laying out)
wholly or partly as a public garden, park, sport and recreation
ground or pleasure ground or walk, or as a "public
space". As the alienation, change of land use and issuance of
the Development Order, converted the use of the park by the public,
to private ownership, it effectively deprives the public of the use
of such open space. The Federal Court held that it was incumbent
upon the Court to protect the public interest when land allocated
for open space by the Datuk Bandar and approved by the Minister of
the Federal Territories, is removed from public use and utilised
for private ownership, to the detriment of the public use. In
addition, the Federal Court held that fundamentally the Impugned
Development Order contravenes the KL Structure Plan as it changes
the use of area in question from open space for public use to mixed
development. The exercise of discretion by the Datuk Bandar is not
in conformity with his duties and obligations as spelt out
in s. 22(4) as well as s.10 and 11 of
the FT Act. Separately, in respect to Leave Question No. 4 on
whether a management corporation or joint management body has the
necessary power and local stand to initiate judicial review
proceeding, the Federal Court answered in the negative and held
that the capacity to sue cannot be implied into the Strata Titles
Act and the Strata Management Act. In conclusion, the appeals by
the Appellants against the sixth to tenth respondents were
dismissed while the claims for judicial review by the first to
fifth respondents were struck out solely by reason of their lack of
title to sue.
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