The Taman Rimba Kiara Case: The Soul of a Park, The Spirit of The People and The Role of The Public Law

by Alliff Benjamin Suhaimi ~ 31 January 2021

The Taman Rimba Kiara Case: The Soul of a Park, The Spirit of The People and The Role of The Public Law


Contributed by:

Alliff Benjamin Suhaimi (Partner)

Tel: 603-6201 5678 / Fax: 603-6203 5678

Email: ben@thomasphilip.com.my

Website: www.thomasphilip.com.my

On 27.01.2021, the Court of Appeal handed down a landmark decision that will significantly and positively impact our public administration and planning laws.

The decision concerned an appeal brought by 10 Appellants from Taman Tun Dr Ismail (“TTDI”) consisting of the Residents’ Association (“RA”), a few Management Corporations (“MC”), a Joint Management Body (“JMB”) and 3 individuals, to quash a Development Order dated 13.07.2017 (“DO”) issued by the Datuk Bandar Kuala Lumpur (“DBKL”).

Vide the DO, DBKL had approved a proposed development of 8 blocks of high-rise luxury condominium on part of the well-known public park known as Taman Rimba Kiara (“TRK”).

The Appellants filed a Judicial Review application to challenge DBKL’s decision to issue the DO. The application was dismissed by the High Court in 2018. However, the Court of Appeal overturned the High Court’s decision and made several important pronouncements which will be explained below.

Locus Standi of the Appellants

The High Court decided that the Appellants had no locus standi to file the Judicial Review application. It accepted the Respondents’ argument that:

a. The Appellants are not entitled to object to the DO pursuant to Rule 5(3) of the Planning Rules as they are not registered owners adjoining the subject land; and

b.  The 1st to 5th Appellants are statutorily established bodies which do not have the power to file a Judicial Review application.

The Respondents’ arguments were rejected by the Court of Appeal. It was held that for a Judicial Review application, the Appellants need only show that they are adversely affected by the DO in order to have locus standi in accordance with Order 53 Rule 2 of the Rules of Court 2012.

The Court of Appeal also confirmed that Order 53 Rule 2 makes no distinction between threshold and substantive locus standi. There is no basis for the Court to read into Order 53 any additional requirements which are simply not there. The Court reaffirmed the single test for locus standi as decided by the Federal Court in Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145.  

All the Appellants had to show is that they are adversely affected by the DO and that they have a real and genuine interest in the subject matter. It was clear that the proposed development would inevitably affect the Appellants in various ways and this included the use of TRK and their properties, as well as the increase in traffic given the magnitude of the said development. Therefore, the Appellants satisfied the locus standi test.

The Court of Appeal also held that Rule 5(3) of the Planning Rules only deals with the locus of persons who are entitled to object and be heard in relation to any proposed development. The same is not relevant in determining the issue of locus standi to initiate a Judicial Review application.

Even if the Appellants did not have to be notified or heard under Rule 5, the Court held that they still had a right to file the action. This is because DBKL, as the local authority, owes a common law duty to notify and hear any objections from adjoining landowners in order to be regarded as having acted fairly in making its decision.  

The Court of Appeal further added that in light of the scheme of the Federal Territory (Planning) Act 1982, there can only be proper and effective town planning if the owners or residents of properties within the vicinity of the proposed development are consulted or heard before any approval is granted by the local authority.

The Court of Appeal also disagreed with the Respondents’ arguments against the powers of the 1st to 6th Appellants to file the action. The Appellants filed their action in a representative capacity for the individual proprietors and residents of TTDI.

It was also held that the lack of an express statutory provision empowering the MC/JMB to file a Judicial Review, does not mean that they lack the power to do so. As the MC/JMB have a statutory power to “do all things reasonably necessary for the performance of its duties under the Act”, this is extensive enough to cloth them with the necessary legal right to file a Judicial Review application.

In addition, the Court also held that as some of the Appellants were actually invited to attend the Rule 5(3) Hearing to state their objections, this in itself is sufficient evidence of their locus standi. DBKL cannot approbate and reprobate by now arguing that the Appellants lack the necessary locus standi.

This decision must be lauded as it is in line with the decisions of our apex court to ensure that a flexible approach must be taken in deciding whether any persons can file an action for judicial review, especially if it is on a matter of public interest.

Procedural Impropriety by DBKL

The Court of Appeal agreed with the Appellants that DBKL has failed to comply with its own Planning Rules. In this regard, DBKL failed to notify the Appellants of its decision to grant the DO and also failed to give its reasons for the same.

It was observed that the Court must not draw an imaginary line restricting its powers to judicially scrutinize the administrative decision of DBKL. In public law, the burden is on DBKL to show how the relevant process and procedures have been complied with.

Pursuant to Rule 5(8) and the common law duty explained above, there is a clear obligation on the part of DBKL to inform the Appellants of its decision to grant the DO and its response to the Appellants’ objections. As a majority of the Appellants were not informed of the decision (including those that attended the Rule 5 Hearing), there is clearly procedural impropriety here.

The Court of Appeal also held that in addition to its duty to inform the Appellants of the decision, the local council must provide the reasons for its decision. The Court relied on the Federal Court’s decision in Rohana Bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487  and Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1  in holding that a reasoned decision is an additional constituent of fairness. 

The lack of an express provision to give reasons, cannot be used by public authorities to avoid explaining their decisions. This is in line with the development of case law as can be seen in Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd v Kesatuan Kebangsaan Perkerja-Pekerja Bank & Anor [2017] 4 CLJ 265 where the Federal Court made it clear that:

“The absence of such a provision ought not to be regarded as a cloak under which the decision maker can hide his rationale for making the decision, privy only to himself but a mystery to the interested parties or the public at large”.

The Court of Appeal also found that DBKL must give its reasons for the decision at the time the said decision was made. In other words, the court should examine the reasons given contemporaneously with the notification of the decision by DBKL, and not the reasons stated in affidavits filed post-decision. The reasons given by DBKL in its affidavit in response to the judicial review action should be treated as merely elucidatory.

This is highly significant as it clearly establishes a duty on public authorities to firstly communicate its decision, and secondly, to give reasons for the said decision at the time the decision is communicated.

In line with the mature public law jurisdictions such as the UK, the decision of the Court of Appeal must be welcomed as it prevents public authorities from keeping members of the public in the dark in relation to any decision which may adversely affect the public. The local authority owes a duty to the public and must fully perform that duty.

Kuala Lumpur Structure Plan & Local Plan are Binding

Based on the Kuala Lumpur Structure Plan (“KLSP”), the subject land has been demarcated as a public open space, recreational area and city park. In the draft Kuala Lumpur Local Plan (“KLLP”) that was in place at the material time, the subject land is demarcated as a city park with zero development intensity. These are not disputed.

The Respondents argued that the plans are not legally binding. It was also argued that DBKL is only required to have regard to the plans in deciding an application for planning permission pursuant to Section 22(4) of the FT Planning Act. There is no need for a strict adherence to it.

The Court of Appeal rejected the above arguments and held that the KLSP and KLLP are legally binding. It was explained that there is an elaborate democratic process in the preparation of these plans which includes presentation of drafts, public consultation and inquiries. Therefore, it belies legal and common sense to say that the plans are not legally binding. Even if DBKL intends to depart from the plans, there must be good reasons for doing so and it must explain its reasons when it communicates the decision.

The Court of Appeal agreed with the Appellants that the KLSP is a carefully drafted and considered statement of policy. It is not just about the planning of the development of our nation’s capital, but its proper planning. In light of the numerous public statements and visions contained in the KLSP, it is reasonable that the residents of KL are entitled to expect DBKL (as the “author” of the plans) to consider and follow the same.

In this case, there was a clear failure by DBKL to show how the provisions of the KLSP were considered in the issuance of the DO. This amounts to a failure by DBKL to take into account material considerations in coming to its decision. For this, the Court of Appeal relied on the English planning law case of Tesco Stores Ltd v Secretary of State for the Environment and others [1995] 2 All ER 636.

In further emphasising the burden on the public authorities in such public interest cases, the Court of Appeal referred to its previous decision in Datuk Bandar Kuala Lumpur v Zain Azahari bin Zainal Abidin [1997] 2 MLJ 17 and held that it is for the local authority to meet the Appellants’ challenge by adducing relevant and admissible evidence to show that the statutory requirements have been met. It is not enough for DBKL to merely refer to the plans.

In its attempt to justify its non-compliance with the KLSP, DBKL argued that the proposed development is necessary to solve the permanent housing issue for the Bukit Kiara longhouse community. The Court of Appeal held that the longhouse issue is not a relevant planning law consideration. That is a legacy or political issue which is not a valid consideration to be taken by DBKL under Section 22 of the FT Planning Act.

In any event, the Court also held that the huge extent of the proposed development (8 blocks of high rise, 45-51 storeys condominiums) is disproportionate to the purported resolution of the longhouse permanent housing issue. The proposed development is in reality a pure business and commercial transaction between the developer and the landowner, as clearly seen from their Joint Venture Agreement (“JVA”).

The decision of the Court of Appeal on this point is significant as it gives proper effect to the whole democratic process in the preparation of structure or local plans. A local authority must properly consider and adhere to the plans unless there are good reasons to depart from the same. Even if there are good reasons, those reasons must be explained to the public contemporaneously.

Conflict of Interest

One of the most significant issue for this case is the conflict of interest caused by the Datuk Bandar’s position as a member of the Yayasan Wilayah Persekutuan’s board of trustees.

Yayasan Wilayah Persekutuan (“YWP”) is the owner of the subject land. YWP entered into a JVA with the developer to develop the land purportedly for the purpose of building permanent housing for the longhouse community. Based on the terms of the JVA, it cannot be disputed that YWP stood to gain commercially from the development. The JVA requires YWP, which the Datuk Bandar sits on the board of trustees, to assist the developer in obtaining the DO. Essentially, the discretion of DBKL in deciding the application for the DO has been fettered.

In view of the above, the Court of Appeal took the position that the test for conflict of interest has been met. In deciding this issue, the Court followed the approach in Steeples v Derbyshire County Council [1984] 3 All ER 468 which held that by entering into a contract with a third party to take all steps necessary to facilitate the proposed development, the local council had put themselves into a position where there was a real likelihood that they would feel constrained to disallow objections.

In other words, it is in the commercial interest of YWP to ensure that the DO is granted and the development to take place. Without such approval, there would be no DO and no proposed development, and this would mean no financial gain. Clearly, the Datuk Bandar is constrained to ensure the DO was issued as it would commercially benefit YWP. This would appear to right-thinking people that the discretion of DBKL had been fettered by the commercial contract. 

In a world where commercial interests usually take precedence over public interest, it is commendable for the Court of Appeal to adopt the Steeples test in determining the issue of conflict of interest. Clearly, this will enable the Malaysian Courts to look beyond the smokescreen of such commercial agreements and entities to discover the real intent and interest of the parties.

Conclusion

Whilst it must be noted that this matter can still make its way to the Federal Court, this case may be one of the few legal battles where the public Davids triumph over the Goliaths of government bodies and property developers.

It is admirable to see the Malaysian Courts making such bold decisions to hold public authorities accountable and ensure that they properly perform their duties. Such duties cannot be ignored at public authorities’ own whims and fancies. Proper communication and reasoning must be given for any public decisions to ensure effective governance by local authorities or public bodies. This has to be the way forward to preserve the duties and obligations as provided in the social contract between the public and any public authority. One can only hope that this decision will be upheld by the Federal Court.

Hopefully, with this decision, more public parks, open space and green areas in Malaysia can be protected and not sacrificed for commercial gains. After all, the earth is what we all have in common.