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2021 MarsdenLR 2628
HIGH COURT MALAYA KUALA LUMPUR
MOHAMAD YUSOF A BAKAR & ANOR – Appellant
Versus
DATUK BANDAR KUALA LUMPUR & ANOR (ENCL 1) – Respondent
[Judicial Review Application No: WA-25-221-08/2020]
The court ruled that applicants failed to demonstrate the necessity for a stay on development orders due to lack of irreparable harm and stable legal standing, affirming principles governing judicial reviews in planning applications.
Headnote:(A) Federal Territory (Planning) Act 1982 – Section 22 – Judicial review – Application for a stay of proceedings in relation to a Development Order (DO) granted – The Applicants sought to stay all proceedings concerning the DO pending the outcome of their judicial review application. The Applicants failed to demonstrate that irreparable harm would ensue without a stay, and the court ruled the balance of convenience favored the 2nd Respondent who had commenced construction. The Applicants' reliance on judicial estoppel was upheld, as their legal position conflicted with earlier assertions in related proceedings. (Paras 18, 21, 36, 49)
(B) Stay of proceedings – Considerations – The court held that for a stay to be granted, the Applicants must show the presence of a serious issue, irreparable harm, and that the balance of convenience lies in their favor – The court determined that these elements were not satisfied and hence the application for stay was dismissed. (Paras 36, 48)
Facts of the case: The Applicants, residents of Taman Tiara Titiwangsa, objected to a DO enabling a high-rise redevelopment on neighboring land. They previously filed a judicial review application which the High Court dismissed, but the Court of Appeal nullified the Public Hearing. (Paras 3-10)
Findings of Court: The court found that the 2nd Respondent faced irremediable harm if a stay were granted, as substantial investments had already been made in the Proposed Development. (Paras 39, 47)
Issues: Whether the Applicants could establish urgency and appropriate grounds for a stay of the DO pending resolution of their judicial review.
Ratio Decidendi: The court emphasized that the Applicants had not shown serious issues warranting a stay and that timing was crucial in planning matters, reaffirming principles similar to injunction standards in order decisions. (Paras 36-40)
Result: Application for stay dismissed.
JUDGMENT
[1] This is the Applicants' application for a stay of proceedings pursuant to prayer (iii) of encl 1 which is their application for leave for judicial review which has been granted by this Court on 6 January 2021. The stay application was ordered to be heard inter partes.
[2] Essentially, the Applicants are seeking to stay all proceedings and action by the 1st Respondent in relation to the Development Order dated 20 December 2019 (the "DO") granted in favour of the 2nd Respondent, the developer, pending the disposal of the judicial review at the substantive stage.
Facts
[3] The Applicants are property owners and residents in Taman Tiara Titiwangsa, Kuala Lumpur. The Applicants residential locality consists of 250 bungalow units spread over an area of 50 acres.
[4] The 1st Respondent is the planning authority in charge for the control and planning in the City of Kuala Lumpur in accordance with the Federal Territory (Planning) Act 1982 ('FTP Act').
[5] The 1st Respondent had issued the DO pursuant to s 22 of the FTP Act in relation to the following proposed development to be constructed on the land known as No HSD 119612 No Lot PT 9885, Mukim Setapak, Daerah Kuala Lumpur (' PT 9885'):
"Cadangan membina 1 blok pangsapuri 49 tingkat (720 unit) termasuk 5 tingkat podium yang mengandungi 5 tingkat tempat letak kereta, kemudahan penduduk dan villa 3 tingkat (23 unit) serta satu blok villa 4 tingkat (23 unit) di atas Lot PT 9885, Jalan 3/51B, Mukim Setapak, Wilayah Persekutuan Kuala Lumpur' ("Proposed Development").
[6] PT 9885 was alienated to Yayasan Wilayah Persekutuan ('YWP') on 8 September 2014 with an express condition that the land is to be developed as a mixed development.
[7] YWP then entered into a joint venture agreement with the 2nd Respondent to execute the Proposed Development on PT 9885.
[8] According to the Applicants, they discovered about the Proposed Development through the Chinese local newspaper and on 20 December 2016, a meeting was held between the landowners and representatives of the 1st Respondent. Amongst the issue raised in the meeting was in relation to technical reports as to the Proposed Development which was yet forthcoming. According to the Applicants, 53 land owners sent in their written objections.
[9] On 27 February 2017, the Applicants and other affected land owners attended a Public Hearing.
[10] Dissatisfied with the manner in which the Public Hearing was conducted, the Applicants and other land owners had appointed solicitors to investigate the Proposed Development and to ascertain the Applicants' legal right to object the same.
[11] According to the Applicants, it was then discovered by the Applicants that YWP was issued with the title of PT 9885. It was also discovered that one Mohd Amin Nordin Abdul Aziz who was at the material time the Datuk Bandar Kuala Lumpur was charged with the statutory duty to approve development within the Federal Territory of Kuala Lumpur by virtue of being the Commissioner pursuant to the FTP Act and the Federal Capital Act 1960 and that the same Mohd Amin Nordin Abdul Aziz is also a director and trustee of YWP.
[12] It was also discovered that the then Federal Territory Minister Tengku Adnan Bin Tengku Mansor who sits as Chairman of the " Jawatankuasa Kerja Tanah Wilayah Persekutuan Kuala Lumpur ("JKT") which is in charge to determine alienation of land to any party or individual is also a director of YWP. It was further discovered by the Applicants that the JKT had granted ownership of PT 9885 for a premium of RM23 million, a fact which was reported in the Malay Mail newspaper on 13 March 2017.
[13] Upon discovering the above, and some other facts from the newspaper reports, the Applicants through their solicitors sent two letters of demand dated 24 March 2017 and 18 April 2017 to the 1st Respondent to the effect that the Public Hearing is null and void and that the 1st Respondent is to refrain from making any decision or taking any steps in relation
