DATUK BANDAR KUALA LUMPUR v. PERBADANAN PENGURUSAN TRELLISES & ORS AND OTHER APPEALS
FEDERAL COURT, PUTRAJAYA
MOHAMAD ZABIDIN MOHD DIAH CJ (MALAYA)
NALLINI PATHMANATHAN FCJ
RHODZARIAH BUJANG FCJ
[CIVIL APPEAL NOS: 01(f)-13-09-2021(W), & 01(f)-55-09-2021(W)]
18 APRIL 2023
[2023] CLJ JT (9)
Abstract – Natural resources such as parks and forests are public property and national assets, particularly where it has been carved out as such in the Structure Plan. In the instant appeals, the Structure Plan shows that the subject land is designated as 'open space'. As the alienation, change of land use and issuance of the Development Order converted the use of the park by the public, to private ownership, it effectively deprived the public of the use of such open space. It is incumbent upon the court to protect the public interest when land allocated for open space by the local authority, the Datuk Bandar of Kuala Lumpur, and approved by the Minister of the Federal Territories, is removed from public use and utilised for private ownership, to the detriment of the public use. That too, without the knowledge of the public. This is particularly so when the net effect of such use by the issuance of the Impugned Development Order, contravened several sections as well as the purpose and object of the Federal Territory (Planning) Act 1982 ('FTA'). Fundamentally, the Impugned Development Order contravened the Kuala Lumpur Structure Plan as it changed the use of area in question from open space for public use to mixed development. The exercise of discretion by the Datuk Bandar was not in conformity with his duties and obligations as spelt out in s. 22(4) as well as ss. 10 and 11 of the FTA. The Impugned Development Order, not being in conformity with the FTA, was therefore null and void.
ADMINISTRATIVE LAW: Judicial review – Local authority – Discretionary powers – Statutory development plans – Grant of development orders – Application to quash grant of planning permission by local authority – Whether statutory development plan gazetted and given force of law – Whether mandatory process of public participation embedded into development plan – Whether required strict compliance – Whether non-conformity formed basis for quashing decision of local authority – Whether local authority's departure from statutory development plan rendered exercise of discretion invalid and illegal – Whether local authority must give reasons for its decisions when there is deviation from statutory development plans – Whether reasons to be communicated at time decision made – Federal Territory (Planning) Act 1982, ss. 19(1), 22(1) & (4)
ADMINISTRATIVE LAW: Local authority – Discretionary powers – Statutory development plans – Grant of development orders – Whether gazetted and given force of law – Whether mandatory process of public participation embedded into development plan – Whether required strict compliance – Whether attempt to circumvent provisions of statutory development plan bad in law – Whether local authority erred in relying on r. 5(3) of Planning (Development) Rules 1970 – Whether contrary to express provisions of Federal Territory (Planning) Act 1982 – Whether local authority's exercise of discretion null and void – Federal Territory (Planning) Act 1982, ss. 19(1), 22(1) & (4)
ADMINISTRATIVE LAW: Local authority – Discretionary powers – Statutory development plans – Local authority's discretionary powers in granting development orders – Local authority approved development order in favour of entity where it sat as member of board of trustee – Whether gave rise to conflict of interest – Applicable test – Whether objective test – Whether local authority in carrying out statutory duties functions as institution – Whether subject matter of focus was institutional conflict of interest and not personal conflict – Federal Territory (Planning) Act 1982, s. 22(4)
CIVIL PROCEDURE: Locus standi – Judicial review – Application to quash grant of planning permission by local authority – Whether applicants required to bring themselves within category of r. 5(3) of Planning (Development) Rules 1970 – Whether adversely affected under Federal Territory (Planning) Act 1982 – Whether all applicants have genuine interest in appropriation and alienation of public land for private development – Whether necessary to prove that special detriment or prejudice suffered – Rules of Court 2012, O. 53 r. 2(4)
CIVIL PROCEDURE: Locus standi – Judicial review – Application to quash grant of planning permission by local authority – Management corporations and joint management body – Whether statutory corporations – Capacity to commence legal proceedings – Whether could represent parcel proprietors – Whether powers could be implied into s. 21(1)(i) of Strata Titles Act 1985 – Whether lacked capacity to bring proceedings
