HIGH COURT OF MALAYA
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www.ipsofactoJ.com/highcourt/index.htm [2006] Part 3 Case 1 [HCM] |
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HIGH COURT OF MALAYA |
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Nadzaruddin Jaafar - vs - Mayor of Kuala Lumpur City |
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RAUS SHARIFF J |
27 JULY 2005 |
Judgment
Raus Sharif, J
This is an application by the applicant for an order of certiorari to quash the decision of the first respondent of September 11, 2001 which gave the following approvals to the second respondent -
Approved the second respondent's application for an increase in the residential density of Lot PT No 1066, Batai Road, Bukit Damansara, Kuala Lumpur from 30 persons per acre to 285 persons per acre.
Granted planning permission to the second respondent for the development of a block of 20-storey apartments (96 units) and one block of 3 and 3½-storey town houses (11 units) with 3 podiums of car park on the said lot PT No 1066, Batai Road, Bukit Damansara) Mukim Kuala Lumpur.
The applicant is an individual and the registered proprietor of Lot PT 1239 HS(D) No 32441, Mukim Kuala Lumpur, Federal Territory, Kuala Lumpur.
The first respondent is a corporate sole established under the Federal Territory (capital Act 1960, and is the local authority in charge of the city of Kuala Lumpur. The first respondent is vested with the powers in respect of the approval of any application for planning permission within the city of Kuala Lumpur.
The second respondent is a developer and the registered owner of Lot PT 1066, Batai Road, Bukit Damansara, Mukim Kuala Lumpur (the said land). The said land is part of Lot 8342 (which was previously known as Lots Nos 4532, 4539 to 4542) Grant CT 27384, Section Batai Road / Batai Utara Road, Stage 5, Damansara Heights, Kuala Lumpur (Lot 8342).
Historically, on and about February 1972, the second respondent submitted a master layout plan to the first respondent for its proposed development of Lot 8342. The proposed development was for an area measuring 123.4 acres. On February 18, 1972, the first respondent approved the said master layout plan for the development of Lot 8342 as follows -
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(a) |
Houses: |
298 units |
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(b) |
Flats: |
252 units |
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Total: |
550 units | |
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Permissible density: |
6 units per acre (30 persons per acre i.e. 5 persons x 6 units) |
Based on the permissible density of 6 units per acre, the permitted development of Lot 8342 was 740 units (i.e. 123.4 acres x 6 units per acre).
The second respondent completed the development of the said 298 units of houses. As to the development of the 252 units of flats on the said land, the second respondent obtained planning permission on March 14, 1974 (first development order). Under the first development order, the approved development of 252 units of flats on the said land was reduced to 245 units of flats. Nevertheless, the second respondent did not immediately proceed with the development of the flats. Only about three years later the development was reactivated where on June 11, 1977, the second respondent applied for an amendment of the first development order, viz to reduce the density of Block C from 28 storeys with 104 units to 18 storeys with 64 units. The application was approved by the first respondent on August 27, 1977 (second development order).
The construction of Block C pursuant to the second development order was completed in 1979 and the certificate of fitness was issued by the first respondent on October 17, 1979. Subsequently, the second respondent on February 12, 1999 applied further to amend the first development order to develop the balance 181 units of flats as 2 blocks of 20-storey apartments with a 3-storey underground car park consisting of 181 units of apartments.
On August 26, 2000, the first respondent gave notice pursuant to rule 5 of the Planning (Development) Rules 1970 in the New Straits Times and the Utusan Malaysia inviting the registered owners of lands adjoining the said land to forward their objections to the second respondent's application, if any, and to have the same addressed to the Director of Planning and Building Control Department of the first respondent.
The applicant, whose land is adjacent to the said land, by a letter dated September 8, 2000, raised various objections to the second respondent's application. The grounds advanced by the applicant in opposition to the second respondent's application were as follows -
The planning permission, if granted, would increase, the density from 30 persons per acre to 408 persons per acre which is an increase of 1360%.
On the basis of 2 cars per apartment, there would be 362 more cars. This does not take into account visitors to the development. This would lead to traffic congestion in the surrounding area.
The area in question will not be able to support a high density development as the public utilities that are presently available to the area such as water supply, electricity, drainage, telephone and sewerage etc. are not adequate. The extra loading on those utilities would result in frequent interruption and cuts in the services to the residents of the area.
The proposed development is contrary to the other type of development that has been permitted in the Bukit Damansara area namely, low rise developments such as the Prima Damansara, Belair Apartment and Desa Damansara.
Kuala Lumpur City Hall should commission independent consultants to study and report on the likely impact of the proposed high density development in the area. The residents should be permitted participation in such a study and a copy of the report should be made available to the residents.
There should have been a comprehensive traffic study undertaken for the whole of the Bukit Damansara area especially as the traffic on the roads in the Damansara area has increased considerably in recent times. The recent road building and the Sprint Highway that is taking place has made the traffic situation in Damansara area chaotic.
The proposed development will take a number of years to complete and it will of course result in foreign labour being used and it has been the experience of the applicant in respect of developments in the area such as the building of bungalows, foreign labour have been responsible for break-ins and other criminal acts. It is therefore feared that with the massive development of this nature and with the use of foreign labour, there would be massive break in and there would also be an increase in crime in that area. The security, therefore, of the applicant would be put in jeopardy by the development.
The development would adversely affect the environment in that pollution and environmental degradation would increase.
The proposed development will decrease the market price of the property owned by the applicant.
The office of the first respondent had previously assured that the approval of new projects above five storeys had been frozen, amongst others, in the Damansara area due to the lack of infrastructure to support such developments in those areas.
On November 8, 2000 the Director of Planning and Building Control Department of the first respondent convened a meeting in pursuant to rule 5(6) of the Planning (Development) Rules 1970 for the purpose of hearing the objections of the land owners including the applicant. The applicant was represented by his solicitors at the hearing.
After hearing the objections, the first respondent did not approve the amendments sought by the second respondent. The second respondent was asked to revise its development proposal. The second respondent then submitted an amended proposal. Based on the amended proposal, the first respondent on November 19, 2000, issued planning permission for the development of 107 units of apartment on the said land i.e. 96 units of apartments in a 20-storeys block and 11 units of apartments in a 3-storey town house block (third development order). The applicant via this application is challenging the decision of the first respondent in granting planning permission by issuing the third development order.
The applicant in his affidavit in support of this application had set out a number of grounds in challenging the decision of the first respondent. However, at the hearing of the application, the learned counsel for the applicant was content to confine his submission on the grounds which I will discuss below.
Firstly, learned counsel submitted that the first respondent owes a duty and/or has an obligation to give reasons for granting of the planning permission as per the third development order. According to learned counsel, the requirement to give reasons is provided by s 22(3) of the Federal Territory (Planning) Act 1982 (FTP Act) and reinforced by the decisions in Datuk Bandar Kuala Lumpur v Zain Azahari Zainal Abidin [1997] 2 AMR 1671; [1997] 1 MLJ 17 (Zain Azhari's case) and Majlis Perbandaran Pulau Pinang v Syarikat Berkerjasama-sama Serbaguna Sungai Gelugar dengan Tanggungan [1999] 3 AMR 3529; [1999] 3 MLJ I (MPPP's case).
Learned counsels for the first respondent and second respondent respectively, were united in their stand that there is no duty on the part of the first respondent to give reasons to the applicant in granting the third development order to the second respondent. According to them the cases relied by the applicant must be distinguished.
I am in agreement with the respondents. To me, s 22(5) of the FTP Act only requires the first respondent to give reasons to the second respondent and such duty arises when the planning permission is granted with conditions or if it is refused. The section reads as follows:
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22. |
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Clearly, the above section does not place a duty to the first respondent to give reasons to the applicant who in this case is a third party objector. The applicant placed great reliance on the MPPP's case, but it should be noted that in that case the Federal Court was dealing with the duty to give reasons that was owed to the applicant land owner and not a third party objector like the applicant. Hence, the MPPP's case does not assist the applicant.
I am also of the view that the Zain Azahari's case is not helpful to the applicant's cause. In Zain Azahari's case the Court of Appeal upheld the decision of the High Court in granting certiorari against the first respondent because no evidence was available at the hearing to support the first respondent's decision in granting the planning permission. The Court of Appeal held that a public decision-maker whose exercise of discretion was questioned must meet the challenge by adducing relevant and admissible evidence. In that case, the first respondent did not file any affidavit, nor had there been any sufficient reason advanced in the affidavit to justify the failure to do so. The situation is vastly different from our present case. In our present case the first respondent did provide the reasons in the affidavit filed in opposing the application. At paragraph 22 of the affidavit (end 26) the first respondent stated, inter alia, as follows:
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22.1 |
at all times since 1974 the said Land has approval for a 28-storey development which involves high density living. |
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22.2 |
the applicant became the registered owner of the Land on 10 August 1994 and must have express or constructive knowledge that the Land concerned is meant for development of high density living. |
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22.3 |
first respondent took into consideration all facts relating to the width of existing roads, drainage system, water supply, electricity supply, telephone and other facilities before issuing the approval to the second respondent. |
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22.4 |
the development on the Land concerned was proposed since 1972 and 1974 in comparison with the development of Prima Damansara, Belair Apartment and Desa Damansara. |
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22.5 |
first respondent, as a statutory body, can act only according to statutory provisions and the assurance which was said to have been given as stated in paragraph 16(a)(XIVI) is not binding. |
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22.6 |
the assurance which was said to have been given was based newspaper cuttings as annexed in Exhibit TAP 4 to the supporting affidavit of the applicant wherein the truth of the same cannot be ascertained. |
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22.7 |
the development of the Land concerned is based on a development which was approved in 1972 and 1974. |
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22.8 |
the objections by all forty one (41) registered owners of neighbouring lands have been considered before the approval, as amended, was issued to the second respondent. |
Clearly in our present case, the first respondent had filed its rebuttal affidavit containing the reasons for granting planning permission. Hence, Zain Azahari's case has no application in our case. Similarly, for the same reasons the case of Yian Sdn Bhd v Datuk Bandar Kuala Lumpur [1993] 3 MLJ 603, relied upon by the applicant, is also not applicable. In both cases, the first respondent did not file a rebuttal affidavit containing the reasons for granting the planning permission.
It had been said before that in cases of this nature, it is not the function of the court to adjudicate upon the merits of the decision of the planning authority. To me, in matters of planning approval and whether planning approval should be granted or refused is a matter for the first respondent to decide. The first respondent with the materials and information that he has is in a position to decide or determine how the planning of Kuala Lumpur should take place. The court's duty is only to see that the matter in hand has been determined by the first respondent in accordance with the relevant laws. From the evidence I do not see any breaches on the part of the first respondent.
Another issue raised by the applicant is the issue of legitimate expectation. The thrust of the applicant's submission is that the first respondent was bound by the representation made by the former City Mayor, Tan Sri Elyas Omar, which appeared in the New Straits Times on May 17, 1991 and the Malay Mail on January 13, 1993. Tan Sri Elyas Omar was alleged to have stated that the approval of new project, above five storeys had been frozen, amongst others, in the Damansara area due to the lack of infrastructure to support such developments in those areas. Those assurances, according to the applicant, had given rise to legitimate expectation which must be taken into account by the first respondent when exercising his statutory duties. But, the evidence relied upon by the applicant are newspaper cuttings. It is trite that newspaper reports are inadmissible as evidence. Abdul Hamid CJ (Malaya) (as he then was) in Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64 made the following observation with regards to newspaper reports:
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Before I consider the grounds, I would, in passing, observe that the sole foundation of the originating summons is the statement allegedly made by the Sultan as reported in the New Straits Times and The Star newspapers on July 27, 1987. There is no affidavit before the court affirmed to by the reporter concerned staring that he heard the Sultan made such statement. The press reports of what the Sultan is reported to have said would appear to be inadmissible as hearsay. The fact that the Sultan has not contradicted the press reports does not, in my view, make the slightest difference for it is well-established that inadmissible evidence does not become admissible by reason of a failure to object. |
Secondly, even if there was such a policy it does not bind the first respondent. Policies are in their nature transient and are) unlike statute, not generally regarded as binding or giving rise to any legitimate expectation. The only qualification to this statement of principle is where the party claiming the benefit of the expectation is able to show that he took steps in reliance of the policy. This was stated by the Indian Supreme Court in Narendra Kumar v Union of India AIR 1989 SC 2138:
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A statement of policy is not a prescription of policy is not a binding criterion. In this connection, reference may made to the observations of Sagnata Investment Ltd v Norwich Corporation [1971] 2 QB 614 at p 626. Also the observation in British Oxygen Co v Board of Trade [1971] AC 610. See also Foulkes' Administrative Law, 6th edn, at pp 181-184. In Exp Khan ([1981] 1 All ER p 40), the court held that a circular of self-made rule can become enforceable on the application of persons if it was shown that it had created legitimate expectation in their minds that the authority would abide by such a policy/guideline. However) the doctrine of legitimate expectation applies only when a person had been given reason to believe that the statue will abide by certain policy or guideline on the basis of which such applicant might have been led to take certain actions. |
In the present case there is no evidence whatsoever that the applicant took any steps in reliance of the purported policy. In fact, the applicant should have known of the existence of the master layout plan or ought to have known of the existence of the master layout plan which designated the said land for high-density development.
On the doctrine of proportionality raised by the applicant, I find that it has no application in this case. I am of the view that the applicant completely misapprehends the significance of the master layout plan that was approved by the first respondent on February 18, 1972. In this regard it must be noted that:
The master layout plan demarcates the development of Lot 8342, which is a master title for 123.4 acres for the purpose of two types of development namely houses (298 units) and flats (252 units).
The development of the 252 units of flats was to be on the part of 8342 (measuring 2.94 acres) which was later subdivided and known an Lot No 1066 (the said land).
Pursuant to the master layout plan, the said land had always been earmarked for high-density development. The first respondent has issued three development orders in respect of the said land between 1974 to 2001. Under all the development orders, the second respondent was bound by the approval given under the master layout plan, which imposed a limit of 252 units of flats for the said land. As it were, only 64 units have been developed thus far in 1999 and if the third development order is sustained, a further 107 units will developed and thus the total development then stands at 171 units only.
The density under the master layout plan was 4.46 units per acre. If the development under the third development order were to be considered, the density would only be 3.8 units per acre. This is still below the approved density of 6 units per acre.
It was submitted by the applicant that the first respondent was not entitled to refer to the previous development orders as the earlier development orders had lapsed. The applicant's relies on the South Oxfordshire District Council v Secretary of State for the Environment [1981] 1 WLR 1092. I am of the view the said case does not support the applicant's stand. Instead, the case fortifies the first respondent's stand that the two development orders are material considerations under s 22(4)(b) of the FTP Act as they relate to the planning history of the land. This may culled from the head notes of the case which reads as follows:
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.... although a planning authority was not bound by a planning permission which had expired, a premium grant of planning permission was part of the planning history of the site and could be taken into account when considering an application for planning permission, but the weight to be attached to it depended on the circumstances .... |
This is not the situation in our case. The first respondent in the affidavit filed in opposing the application has stated the matters which were taken into account in approving the third development order.
In conclusion, I am of the view that the decision making process of the first respondent in issuing the third development order is not vitiated by any illegality, irrationality or procedural impropriety. Clearly, the first respondent has not acted ultra vires his powers and the decision made by the first respondent cannot be categorized as so outrageous as to defy logic such that no sensible person would make it. Also there is no procedural impropriety on the part of the first respondent. The applicant was given the opportunity to state his objection in writing as well as at an oral hearing. In fact, his objections was considered and taken into account by the first respondent in granting the third development order.
For the abovesaid reasons, the applicant's application is dismissed with costs.
Cases
Datuk Bandar Kuala Lumpur v Zain Azahari Zainal Abidin [1997] 2 AMR 1671; [1997] 1 MLJ 17, CA; Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64, HC; Yian Sdn Bhd v Datuk Bandar Kuala Lumpur [1993] 3 MLJ 605, HC; Majlis Perbandaran Pulau Pinang v Syarikat Berkerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 AMR 3529; [1999] 3 MLJ I, FC; Narendra Kumar v Union of India AIR 1989 SC 2138; South Oxfordshire District Council v Secretary of State for the Environment [1981] 1 WLR 1092, QBD
Legislations
Federal Capital Act 1960
Federal Territory (Planning) Act 1982: s.22
Planning (Development) Rules 1970: rule 5
Representations
G Rajasingam & Jack Yow (Shearn Delamore & Co) for appellant
B Thangaraj (Thangaraj & Associates) for first respondent
Steven Thiru (Shook Lin & Bok) for second respondent
Notes:-
This decision is also being reported at [2005] 6 AMR 55
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