The Court of Appeal judgment on Taman Rimba Kiara: Three key takeaways — Lim Wei Jiet

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JANUARY 29 — On January 27, 2021, the Court of Appeal delivered a landmark judgment in quashing DBKL’s development order for luxury service apartments to be built on Taman Rimba Kiara. This was a commendable judgment which has a positive long-lasting impact on the environment, urban planning and the rights of residents.

Briefly, Taman Rimba Kiara was envisioned by the KL local authority as a public open space, green and recreational area. In fact, the COA acknowledged that it is the only public park in KL where wild hornbills are sighted, and that it was a migration point for various protected species.

In 2017, a Development Order was issued by DBKL to construct eight blocks of luxurious service apartments up to 52 storeys, one block of affordable housing and eight-storeys of podium carparks. The TTDI resident associations objected as the development will significantly increase the density of TTDI and irreversibly degrade Taman Rimba Kiara as a green lung.

KL mayor’s conflict of interest

In court, the TTDI residents discovered that part of the Taman Rimba Kiara land had been alienated to Yayasan Wilayah Persekutuan (YWP), the CSR of arm of DBKL. YWP had entered into a JV with a developer, Memang Perkasa Sdn Bhd, to develop the Taman Rimba Kiara land. Under the JV, Memang Perkasa was to pay RM160 million to YWP in stages. But YWP-Memang Perkasa JV had to get approval from DBKL to develop Taman Rimba Kiara.

This is where the facts get interesting. The DBKL Mayor and the Federal Territories Minister sit on the Board of Trustees of YWP. Therefore, in effect, DBKL had to apply to DBKL for approval. The applicant and the approving body are one and the same.

The COA was having none of this. It astutely observed: “Without such approval, there would be no joint venture, nothing to develop and no financial gain [for YWP]”. The COA held that there was a clear conflict of interest and DBKL’s approval was void.

Local authorities had duty to give reasons for planning approval

To reiterate, the TTDI residents raised objections via formal channels. The KL Mayor never got back to them. The residents only later found out that he had approved the development. No reasons were given to the residents.

The COA held that every public body has a duty to give reasons to persons affected by its decision. It observed: “There can only be responsible and proper planning if the Mayor who approves or rejects any planning permission explains its reasons to all concerned”, especially the TTDI residents.

The KL Mayor’s explanation was that he did provide reasons for the approval in his affidavit in Court. The COA did not accept this, and held that “for the duty to give reasons to have any meaning, the decision ought to have been communicated at the time when it is made”. And not only when a court case has been filed.

Local authorities must have regard to KL structure plan

DBKL was further found to be unreasonable for not paying regard to the KL Structure Plan. The COA acknowledged that the KL Structure Plan is a carefully drafted and considered statement of policy. It concerns “the capital city of the Nation, not just about planning of its development, but its proper planning”. People’s lives and economic activities are planned according to the KL Structure Plan. Thus, people expect DBKL to adhere to it.

Consequently, if a local authority is to depart from such plans, there must be very good reasons to do so.  It sharply quipped: “If the [Mayor], the ‘authorised producer’...of these plans, does not consider these plans material considerations, it is of great worry who then will.”

There is no doubt the said development on Taman Rimba Kiara deviates greatly from KL Structure Plan. The COA found that there was no evidence produced by DBKL, whether in the form of minutes of meetings or consultation papers, to prove that the Mayor had considered the KL Structure Plan before approving the development.

There was an attempt to justify the development as a method to resolve the housing of 100 families of the Bukit Kiara Longhouses. The COA was not convinced, and held that the Bukit Kiara longhouses is a legacy and political issue, which is unrelated to the planning issue at hand. It did not mince words: “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...”

This case is testament on the importance of an independent Judiciary. The residents could not vote for the KL Mayor. The Federal Territories Ministers over three different governments could not resolve this. Where else can ordinary residents go to vindicate their (and the environment)’s rights, but the Courts? The Judiciary is often always the final bulwark against Executive and Legislative overreach — that is why we must jealously guard it.

There is one more avenue of appeal to the Federal Court. Hence, the battle is not over yet. But this is no less an outstanding victory for the common man (and the environment) over the powers-that-be. And a great example of how effective local community mobilisation can bring a lasting generational impact.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.

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