Jeffrey Tan JCA:

MINORITY JUDGMENT

[1]This is an appeal against the refusal of the court below to grant an order of certiorari to quash the development order dated 2 October 2007 for the development of the second respondent’s land (Lots 37180, 37184–37198, 37203–37219, 37223–37237, 37239–37255, 37357–37262, hereinafter collectively referred to as the said land) at Bukit Gasing, Kuala Lumpur.

[2]In the court below, the appellants contended that the development order, which was issued by the first respondent without a public hearing, was void. The appellants contended (i) that there was non-compliance of ss 21, 21A and 22 of the Town and Country Planning Act 1976 (Act 172), (ii) that the amendments to the Planning (Development) Rules 1970, the Planning (Development) Rules 1994, were ultra vires the Federal Territory (Planning) Act 1982 (Act 267), (iii) that the Planning (Development) Rules 1970 provided for the appellants to be heard in connection with any application for planning permission on adjourning properties, and (iv) that in any event, the amendments to the Planning (Development) Rules 1970 have not taken away the right of the appellants to be heard.

[3]But all issue on the validity of the amendments to the Planning (Development) Rules 1970 were not taken up for consideration by the learned trial judge who held that it was not open to the appellants to advance that issue at the hearing, as the appellants, by their solicitors’ letter dated 12 June 2008 to the respondents, had confirmed that the appellants would not challenge the amendments to the Planning (Development) Rules 1970.

[4]All the appellants claimed locus standi as owners of neighbouring lands. But it came to light, at the stage of submissions, that five of the 108 appellants were not such owners. Thereupon, those five appellants sought leave to withdraw as applicants. But that was turned down by the learned trial judge, who held that the application for judicial review was a joint application that was not divisible or severable (see p 29 of the appeal record). The learned trial judge further held that it was not a case of misjoinder of parties but where ‘persons who are not registered owners of adjoining properties … had applied jointly with those who are registered owners and had obtained interim orders against the respondents’, that ‘it is too late … for the applicants concerned to withdraw’, and that the application of the appellants ‘suffered from infirmities of lack of good faith, candour and full and frank disclosure of material facts’. And according to the learned trial judge, that was reason enough to dismiss the application.

[5]The alternate and or second ground of the learned trial judge for dismissal of the application was that ‘the (appellants) had no locus standi and no legal basis to demand … a public hearing before … a decision on the 2nd Respondent’s application for planning permission’ (see 41AR), which I will first take up for scrutiny.

[6]For the territory of Kuala Lumpur, planning permission was once governed by the City of Kuala Lumpur (Planning) Act 1973 until repeal by the Federal Territory Planning Act 1982 (FTPA 1982). Section 64 of the FTPA 1982 empowered the authority appointed under the Federal Capital Act 1960, with the approval of the Minister, to make ‘rules generally for the better carrying out of the provisions of the FTPA 1982.

[7]In the exercise of the powers conferred by that s 64, the authority, with the approval of the Minister, made the Planning (Development) (Amendment) Rules 1994 which amended the Planning (Development) Rules 1970. One amendment in particular was the substitution for r 5 of the 1970 Rules with the following r 5.

5.

(1)Upon receipt of an application for planning permission in respect of a development which involves increase in residential density or change of use of land, the Commissioner shall determine whether the proposed development —

(a)is proper and may, subject to further inquiry, be considered; or

(b)is ina