Apex court upholds COA decision to quash DO for 45-storey apartment block on Jalan Jejaka
In an unanimous decision, a three-member apex court bench led by Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah dismissed the applications for leave to appeal by the Kuala Lumpur city mayor, the then Federal Territories minister, the Kuala Lumpur City Hall, the Malaysian government and Pavilion Integrity.
PUTRAJAYA (June 21): The Federal Court on Wednesday (June 21) upheld a Court of Appeal decision last year that quashed a development order for the construction of a 45-storey apartment complex near Jalan Jejaka 1 and Lorong Peel by Pavilion Integrity Sdn Bhd and ruling that the Kuala Lumpur City Hall acquire and build a road that had already been gazetted in the KL draft plan.
In an unanimous decision, a three-member apex court bench led by Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah dismissed the applications for leave to appeal by the Kuala Lumpur city mayor, the then Federal Territories minister, the Kuala Lumpur City Hall, the Malaysian government and Pavilion Integrity.
“We (the bench) find all applications do not meet the threshold under Section 96 (a) of the Courts of Judicature Act. Hence, the applications are dismissed,” he said.
Federal Court judges Tan Sri Nalini Pathmanathan and Datuk Seri Zabariah Mohd Yusof were the other two judges on the bench which ordered the appellants to pay RM220,000 in costs to the respondents that comprised of some 202 residents in the Laville and Amaya Maluri apartments which are located nearby Lot 810.
The said land on Lot 810 was originally set aside for the construction of a road to ease congestion in the area, but subsequently, the KL City Hall approved the construction of the apartment block and a smaller road measuring 20 feet wide — less than a third of the initially proposed road that had been gazetted in the KL draft plan which was to measure 66 feet wide.
On Oct 7 last year, a three-member Court of Appeal bench led by Datuk Lee Swee Seng overturned two High Court decisions and allowed a judicial review of the KL City Hall’s decision. He also criticised the council’s action to reverse its earlier plan for the wider road.
COA usurped planning law, argues counsel
Datuk Dr Cyrus Das, who appeared for the KL mayor, submitted six questions of law to be considered by the bench and said in his submissions that the appellate court is deemed to have usurped the planning law by forcing the council to acquire the land to build the road.
He further argued the appellate court could not direct City Hall to acquire the land for the construction of the road.
Counsel Datuk Malik Imtiaz Sarwar for Pavilion Integrity, which had posed five questions of law to be considered, agreed with Cyrus, adding the respondents/residents had not challenged the developmental order granted to Pavilion, which Malik argued went against the requirements for a judicial review.
Senior federal counsel Liew Horng Bin and Nik Nor Nik Kar, appearing for the then FT minister and federal government, also argued that the appellate court has no power to ask the KL City Hall to acquire the land. The counsels observed that acquiring the said land would result in additional costs of between RM40 to RM80 million.
Pavilion knew the plot was for construction of road
Datuk Ambiga Sreenevasan, who appeared for the residents, went through the chronology of the case. She said that Pavilion Integrity had known when it bought Lot 810 that the plot had been gazetted for the construction of a road.
She pointed out that the proposal for the construction of the project was done without a clear Traffic Impact Assessment, as none was laid out to the residents unlike the original proposal for the construction of a road to reduce the congestion.
Another counsel Ho Kok Yew said a series of decisions had been made to construct the road, then unmade to allow a development order of the apartments and remade to construct a smaller road with the apartments on the same plot.
He said the draft plan had been there “since immemorial” for the construction of the road and not some hybrid version to reduce from 66 feet wide to 20 feet wide, noting that this could defeat its functional purpose.
Another lawyer Yeoh Cho Kheong pointed that the questions posed by the appellants had already been answered in the Taman Rimba Kiara case. Yeoh also pointed out that Lot 810 had already been designated as a road reserve.
Ambiga, Ho, Yeoh and Latheefa Koya argued that there were no novel questions posed as the issue had been decided in the Taman Rimba Kiara case, where the Court of Appeal had rightly decided on the matter even before it went before the apex court.
In the Taman Rimba Kiara case, the apex court had also quashed a similar development order granted to Memang Perkasa Sdn Bhd, a subsidiary of Malton Group, to develop a mixed development including luxury service apartments on the Taman Rimba Kiara land.
In the current case, even though the proposed construction of the road had been gazetted, on March 14, 2018, KL City Hall issued a development order in favour of Pavilion which allowed it to build a 45-storey serviced apartment block on the lot. But by the end of the year, the council rescinded its order.
At the time, it proposed to go with the construction of the gazetted road only to change its decision again in early 2019, where it allowed Pavilion Integrity to construct the apartment complex — but with a smaller road.
Source: EdgeProp.my
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