Green lung: Taman Rimba Kiara has been the subject of a years-long battle between the TTDI residents association and Kuala Lumpur authorities. — FAIHAN GHANI/The Star
PUTRAJAYA: A seven-year legal battle to save Taman Awam Bukit Kiara – formerly known as Taman Rimba Kiara – is finally over. The Federal Court has upheld the Court of Appeal’s decision to quash the development order (DO) for a high-rise project at the public park in Taman Tun Dr Ismail (TTDI), Kuala Lumpur.
In a unanimous decision, a three-member panel led by Justice Nallini Pathmanathan concluded that the DO contravened the existing laws in the Federal Territories.
The other two judges were Chief Judge of Malaya Justice Mohamad Zabidin Mohd Diah and Justice Rhodzariah Bujang.
The Federal Court’s decision marked the end of a protracted battle between the TTDI residents association and Kuala Lumpur authorities.
The residents filed the judicial review application on Aug 11, 2017, seeking a certiorari order to quash DBKL’s development order as they claimed that the 10.08ha Taman Rimba Kiara is a public park located in TTDI and Bukit Kiara area and a green lung of Kuala Lumpur.
On Nov 28, 2018, the High Court dismissed the judicial review application.
On Jan 27, 2021, the Court of Appeal overturned the High Court decision and quashed the development order given by DBKL.
DBKL, YWP and the developer then appealed to the Federal Court, which ended with the current judgment.
DBKL had originally issued the DO to Memang Perkasa in 2017 to develop a 4.9ha area of the park.
The project included eight blocks of 42- to 54-storey serviced apartments, one 29-storey low-cost flats and a parking complex.
The low-cost scheme was to relocate and house the settlers of nearby longhouses, whose families were former estate workers in the area. Yayasan Wilayah Persekutuan (YWP) is the owner of the land.
Justice Nallini said the court primarily considered if the mayor, as an entity under the Federal Territories (Planning) Act 1982, had exercised discretion correctly and lawfully.
She said the affidavits given by the mayor to explain the issuance of the DO offered little insight into how discretion was practised.
“They failed to explain why the mayor departed from the Kuala Lumpur Structure Plan 2020 (KLSP2020) in issuing the DO,” she said.
She further noted that according to KLSP2020, the land alienated for development was demarcated as green area for public use.
“Any layperson reading it would most likely conclude that Taman Rimba Kiara was, and would remain, a green and open space.“It seems that the demarcation was changed without a corresponding rectification in the structure plan,” she added.
Justice Nallini said there were no hearing sessions to gather public input about the change in the status of the land plot concerned.
Public participation, she noted, was a mandatory process outlined in the Act, and no changes could be made to KLSP2020 at will.On the issue of the longhouses residents, Justice Nallini said this was a separate obligation owed by the Kuala Lumpur authorities.
“The mayor is not to rely on this to justify granting the DO, which converts the public space into a private and mixed development,” she added.
On the issue of the mayor serving on YWP board of trustees, Justice Nallini said a conflict of interest or bias was likely.
She held that when YWP entered into a joint venture agreement with Memang Perkasa prior to the alienation of the land, the mayor knew from the KLSP2020 that the land use was green open space for public use.
“The alienation of the land to YWP in conjunction with the joint venture agreement with Memang Perkasa would entail a change in land use to mixed development.
“However, there was no compliance with the Act in terms of variation or amendment to the KLSP2020,” she added.
“The mayor, therefore, wore three hats in three capacities, namely, the mayor was part of the entity that approved the subject land’s alienation, the mayor was part of the applicant for planning permission, i.e YWP as it was a member of the board of trustees, and the mayor was also the entity that granted the impugned development order on July 13, 2017.”
In upholding the Court of Appeal’s judgment, the apex court ordered DBKL, YWP and Memang Perkasa to pay RM100,000, RM80,000 and RM60,000 respectively as costs to the respondents.
