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Case Update: Apex Court upholds decision to save Taman Rimba Kiara

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15 May 2023

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.

Zul Rafique & Partners
{15 May 2023}

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