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KUALA LUMPUR, Jan 27 ― The Court of Appeal today quashed a development order for a proposed high rise project in Taman Rimba Kiara, allowing an appeal by the residents association of the adjoining Taman Tun Dr Ismail against a government decision.
Datuk Mary Lim, who chaired the three-judge panel, ruled that there were sufficient grounds to set aside the development order dated July 13, 2017.
She also said the residents association has locus standi to challenge the earlier government decision.
In her judgment today, Lim also stated that the court could not accept the justification given by the Kuala Lumpur Mayor (Datuk Bandar) that the development order was issued to resolve the housing issue faced by the Bukit Kiara longhouse community.
“The Datuk Bandar as well as other respondents had sought to cite the Bukit Kiara longhouses and the reason to grant the DO (development order) was in their interests and their welfare.
“With respect, we cannot see how the matter of Bukit Kiara longhouses is a planning issue. It’s a legacy or political issue which has no place in the consideration that the Datuk Bandar is required to take into account in exercising discretion per Section 22 of Act 267,” said Lim in reference to Section 22 of the Federal Territory (Planning) Act 1982 which covers development orders.
“The Development Order granted was also disproportionate to the purported resolution of the matter of the Bukit Kiara longhouses.
“This proposed development was and is, in truth and in reality, a pure business and commercial joint-venture between two entities, that is Yayasan and Memang Perkasa, as evidenced by the clear terms of the JVA ‘(joint venture agreement),” Lim further explained.
The proposed development project was part of a joint venture between Yayasan Wilayah Persekutuan and Memang Perkasa Sdn Bhd.
The Court of Appeal also concurred with the appellant’s reasoning that the development order contradicted city development plans which demarcated Taman Rimba Kiara as a public open space, green area and city park.
Lim further stated that the proposed development would permanently affect Taman Rimba Kiara’s status as public open space and was unclear about how the KL Mayor intended to address the matter.
The Court of Appeal also found there were sufficient grounds to believe, as filed by the appellant, that a conflict of interest exists in the KL Mayor’s role as the city’s planner and as a member of Yayasan Wilayah’s board of trustees.
“The chronological records of how the Development Order came to pass, how the process and circumstances of the grant of the Development Order were facilitated, the details of the JVA and the involvement of the Datuk Bandar are amongst the paramount reasons why we find further evidence of the existence of a conflict of interest in addition to the findings of procedural irregularity.
“No matter how the Datuk Bandar attempts to separate or distance itself from the JVA and also from the impugned decision and now claiming in the affidavits filed that the development was to relocate the Bukit Kiara Longhouses, it is undeniable that the terms of the JVA, looked at as a whole, all point inexorably to the existence of a conflict of interest,” she said.
The proposed development project was first introduced during Datuk Seri Tengku Adnan Tengku Mansor’s tenure as the Federal Territories minister in 2016. It was carried forward into the Pakatan Harapan government, where Khalid Samad fulfilled the same role. Tan Sri Annuar Musa now holds the portfolio in the Perikatan Nasional administration.
The development, which has been mired in controversy since mid-2016, was to include high-end service apartments as well as affordable housing units for TTDI longhouse residents.
The proposed development was to consist of a 17-storey block of 204 affordable housing units meant for the Bukit Kiara longhouse community, and four blocks of 41- to 45-storey condominiums, comprising 1,082 units in total.