Court DecisionMY-COA

W-01(A)- 437-07/2018

Dato’ Mohamad Yusof Bin a Bakar v Datuk Bandar Kuala Lumpur (W-01(A)- 437-07/2018)

Court of Appeal of Malaysia13 Mar 2019

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Larangan di bawah Aturan 53, Kaedah 2(1) Kaedah-Kaedah Mahkamah 2012 dan Perenggan 1 Jadual kepada Akta Mahkamah Kehakiman 1964; Dan Dalam Perkara Permohonan Untuk Deklarasi di bawah Aturan 53, Kaedah 2(2) Kaedah-Kaedah Mahkamah 2012. ANTARA 1. DATO’ MOHAMMAD YUSOF BIN A BAKAR
LIM CHENG IM … PEMOHON-PEMOHON DAN DATUK BANDAR KUALA LUMPUR ... RESPONDEN] (An appeal against the decision of YA Azizah bt Nawawi, Judge, High Court at Kuala Lumpur made on 26.6.2018) 3 CORAM ABDUL RAHMAN SEBLI, JCA MARY LIM THIAM SUAN, JCA HASNAH MOHAMMED HASHIM, JCA JUDGMENT [1] An application for judicial review under Order 53 Rules of Court 2012 (ROC) filed by the appellants as applicants was dismissed by the High Court on 26.6.2018. Hence, this appeal was brought by the appellants. We heard this appeal on 13.3.2019 and after perusing the Records of Appeal, the written submissions filed by the respective learned Counsels and upon hearing learned Counsels, we allowed the appeal. [2] For ease of reference, in this judgment, the parties will be referred to as they were in the High Court. Material Facts [3] The applicants' application sought the following orders:
a declaration that the meeting/inquiry to hear the objections of registered owners of properties adjoining the proposed development within defined limits conducted by the Datuk Bandar Kuala Lumpur (‘DBKL') on 27.2.2017 in respect of the proposal to build three (3) blocks of apartments on Lot PT. 9885, Jalan 3/51B, Mukim Setapak, Kuala Lumpur is null and void; 4
an order of Prohibition to prohibit the Datuk Bandar from taking any further proceedings concerning the meeting/inquiry held on 27.2.2017 and/or making a decision with regards to the proposed development of the three (3) blocks of apartments on Lot PT. 9885, Jalan 3/51B, Mukim Setapak, Kuala Lumpur; and
pursuant to Order 53 Rule 3(5) ROC, an order to stay all proceedings and/or any further steps taken by DBKL in relation to the meeting/inquiry held on 27.2.2017 and/or making a decision with regards to the proposed development of the three
blocks of apartments on Lot PT. 9885, Jalan 3/51B, Mukim Setapak, Kuala Lumpur. [4] The grounds of the application as stated in the Statement under Order 53 r 3(2) ROC are as follows:
no full disclosure during the meeting on 27.7.2017 and a breach of the principle ‘audi alteram partem';
the Datuk Bandar was biased, as the application was made by the owner of Lot PT 9885, Yayasan Wilayah Persekutuan (the Federal Territory Foundation) of which the Datuk Bandar himself is one of the members of the Board of Trustees;
the Datuk Bandar will act upon the instruction of the Minister of Federal Territory instead of exercising his discretion under the Federal Territory (Planning) Act 1982 (‘Act 267’); and 5
the applicants have a legitimate expectation that the Datuk Bandar will act fairly with regards to the meeting on 27.2.2017. [5] The applicants are registered owners of properties described as Lot 16622 and Lot 16587 located in Taman Tiara Titiwangsa, Kuala Lumpur (‘the residential area'). The residential area covering an area of 50 acres consists of 250 bungalow units. The applicants' properties are in close proximity to the proposed development on Lot PT. 9885. Originally, Lot PT 9885 covering 10.3 acres was zoned as reserved land for a sewerage plant. However, according to Draft Kuala Lumpur City Plan 2020 in 2008 (‘Draft KLCP') Lot PT 9885 was re-zoned as an area for a community centre and open space. [6] Through an advertisement in a Chinese newspaper the applicants discovered that there was an application for planning permission of a proposed development concerning the aforesaid Lot PT 9885. The proposed development will ultimately increase the density of the residential area from 60 persons per acre to 800 persons per acre. Unhappy with the planning permission application for the proposed development in the residential area, the landowners met with the representatives of the respondent to obtain further particulars of the proposed development. A meeting was held on 20.12.2016 where the applicants together with the owners of other properties (through their representatives) requested for clarification from the respondent, in particular:
the reason for not erecting any signage at the site of Lot PT 9885 giving particulars pf the proposed development; and 6
requested that the respondent furnish the following technical reports as the proposed development will result in a dramatic increase of density i.e 60 to 800 persons per acre and the change in the use of the land in question:
the proposed development report;
traffic assessment report;
social impact report; and
any other related reports. (‘the technical reports’) [7] The representative of the respondent informed the applicants that the technical reports were still in the process of being completed and assured that once completed, a copy will be given to the applicants during the inquiry. The applicants felt that the technical reports should have been given not only before the scheduled inquiry, but even before the respondent advertised in the Chinese newspaper for adjacent landowners to raise their objections in writing as the applicants would require time to study the reports. [8] As required under the relevant laws the applicants were given two (2) weeks to submit any objection in writing to the respondent. Fifty-three (53) adjacent landowners submitted their written objections on 28.12.2016 without the benefit of the technical reports. To date, the applicants have yet to receive a copy of the technical reports by the respondent. [9] Unhappy with the lackadaisical attitude coupled with lukewarm response of the respondent, on 23.1.2017 the applicants through their 7 representative issued a letter dated 20.1.2017 to the respondent's Department of Integrity [See: pages 215-216 ROA Vol 2(1)]. [10] Regrettably, there was no response from the respondent's Department of Integrity. The respondent subsequently issued a notice dated 7.2.2017 inviting the applicants and other affected landowners to attend an inquiry on 27.2.2017. The applicants, as well as the other affected landowners, attended the inquiry; however, there was no explanation or clarification on the proposed development was given at the inquiry by the respondent. The respondent also did not give any reason why Lot 9885 was considered for such a big development contrary to the terms of the draft KLCP. [11] At the inquiry the residents raised their concerns about the traffic condition within the residential area. Surprisingly, the representatives of the respondent who attended the inquiry were obliviously unaware of the severe traffic condition in the area. As the respondent was not aware of the traffic condition in the residential area, the 2nd applicant, through his representative, send an email dated 28.12.2017, a day after the inquiry, enclosing photographs showing the traffic congestion experienced by the residents. [12] Dissatisfied with the manner the inquiry was conducted, the applicants together with the other landowners appointed solicitors to conduct a search on Lot 9885 and discovered that the title was issued to the Yayasan Wilayah Persekutuan (‘YWP') as the registered owner. Through the search conducted it was also discovered that the Jawatankuasa Kerja Tanah Wilayah Persekutuan (‘Jawatankuasa Kerja') granted the ownership to YWP for a premium of RM23 million. The premium was paid sometime in 2014 8 and Lot 9885 was then pledged by the YWP to Malayan Banking Berhad for the purpose of a loan. [13] The search also revealed that the Minister of Federal Territory was a director of YWP as well as the Chairman of the Jawatankuasa Kerja. The applicants through their solicitors took immediate steps and issued letters dated 24.3.2017 and 18.4.2017 to the respondent demanding that the inquiry on 27.12.2017 be declared as null and void and that the respondent be refrained from making any further decision and steps in relation to the proposed development. The High Court [14] The learned High Court Judge's findings can be summarised as follows:
On the issue of breach of natural justice, rule 5 of the Planning Rules does not require the respondent to furnish reports before the applicants can submit their objection. There is no such legal requirement under the said Rules as it only gives the right to the applicant to be present to raise objections. Since there is no statutory requirement, there is no breach of natural justice. The applicants cannot complain that they have been denied of their rights. (See: paragraphs [21] – [28] of the Grounds of Judgment).
In respect of the issue of bias, the inquiry was not conducted by the respondent, the Mayor but by the relevant department of DBKL. The applicants' complaints pertained specifically to 9 the inquiry; therefore, the issue of bias does not arise and if so will only be relevant if the development order is challenged by the applicants. (See: paragraphs [29] - [32] of the Grounds of Judgment).
On legitimate expectation, the issue is premature as the respondent has not made any decision under section 22 of the Federal Territory (Planning) Act 1982 (‘Act 267'). What the applicants are seeking to review is not a decision, direction, acts or omission, but an inquiry held on 27.2.2017, which the respondent had to conduct pursuant to rule 5 of the Planning Rules. (See: paragraphs [33] – [41] of the Grounds of Judgment). The Statutory Framework [15] To appreciate our reasoning, it will be useful to set out the provisions of the relevant Acts and Rules. The Commissioner: Appointment and Functions [16] Act 267 is an Act for the control and regulating of proper planning in the Federal Territory, for the levying of development charges, and for purposes connected therewith or ancillary thereto. Section 3 of Act 267 provides: The Minister shall be responsible for general policy with respect to the planning of the development of all lands within the Federal Territory and (subject to Clauses (5) and (6) of Article 91 of the Constitution) of the use of such lands and buildings and for such purposes the Minister may give directions of a 10 general character or specific in nature not inconsistent with the provisions of this Act and the Commissioner shall give effect to such directions. [17] Section 5 of Act 267 prescribes the powers and functions of the Commissioner:
The Commissioner is hereby appointed to exercise all the functions and powers conferred and to perform the duties imposed on him by this Act.
In his exercise of any functions and powers conferred or in his performance of any duties imposed by this Act, the Commissioner shall not be subject to the provisions of section 5 of the Federal Capital Act 1960; and any provisions in that Act referring to the Lembaga Penasihat Kuala Lumpur established under the said section 5 shall not apply to the Commissioner in his exercising of the functions and powers and in his performance of his duties under this Act.
Whereby or under this Act the Commissioner is empowered to exercise any powers or to perform any duties, he may in writing delegate subject to such conditions and restrictions as may be specified in such written delegation, the exercise of such powers or the performance of such duties to any person described by name or office: Provided that nothing in this subsection shall apply to any power to make subsidiary legislation conferred upon the Commissioner by or under this Act.
Where the Commissioner delegates the exercise of any powers or the performance of any duties to any person pursuant to subsection (3), the person so delegated shall in this Act be referred to as an authorized officer.
The Commissioner may appoint with the approval of the Minister and subject to such terms and conditions as may be specified in the letter of appointment, agents to transact any business or to do any act required to be transacted or done in the execution of his functions, powers and duties or for the better carrying into effect the purpose of this Act; and the agent so appointed shall in this Act be referred to as the authorised agent. 11 [18] The appointment of the Commissioner is pursuant to section 4 of the Federal Capital Act 1960 (‘Act 190’). Section 2 of Act 190 defines the Commissioner as the Datuk Bandar Kuala Lumpur or, in English, the Commissioner of the City of Kuala Lumpur, appointed under section 4 of the Act:
The municipal affairs of the City of Kuala Lumpur shall be administered by the Commissioner of the City of Kuala Lumpur.
The Commissioner shall be appointed by the Yang di-Pertuan Agong for a term of five years or, if the Yang di-Pertuan Agong in any particular case so determines, for such shorter term as may be so determined.
Subject to this Act, the Commissioner shall hold office upon such conditions as the Yang di-Pertuan Agong may from time to time determine……. [19] Under Act 190 the Commissioner is empowered to exercise any powers or perform any duties and he may by an instrument in writing delegate, subject to such conditions and restrictions as may be prescribed in such instrument, the exercise of such powers or the performance of such duties to any person described by name or office. Similarly, under section 6 of Act 267 the Commissioner is empowered to exercise all the functions and powers conferred and to perform the duties imposed on him by the Act:
Subject to the provisions of this Act, the functions of the Commissioner shall be to regulate, control and plan the development of all lands within the Federal Territory and the use of such lands and buildings and to perform any such other functions as the Minister may assign to him.
In particular and without prejudice to the generality of the foregoing provisions, the Commissioner may, and shall if directed by the Minister— 12
prepare and implement the development plan;
undertake, assist and encourage the collection, maintenance and publication of statistics, bulletins and other publications relating to town planning;
prepare and furnish reports relating to the working of this Act; and
perform any other function which is supplemental, incidental or consequential to any of the functions aforesaid or which may be assigned by the Minister. [20] The Commissioner is empowered by statute to exercise any power or to perform any duty and may in writing delegate, subject to such conditions and restrictions as may be specified in such written delegation, the exercise of such power or the performance of such duty to any person described by name or office. The Commissioner is tasked by different statutes to carry out specific functions in relation to the municipal affairs of Federal Territory and under Act 267 to regulate, control and plan the development of all lands within the Federal Territory and the use of such lands and buildings. [21] The Advisory Board or the Lembaga Penasihat Bandaraya Kuala Lumpur is appointed to advise the Commissioner upon such matters connected with the administration of Kuala Lumpur as the Yang di-Pertuan Agong may by order prescribe, and upon any questions referred to the Advisory Board by the Minister or the Commissioner (See: section 6 Act 190): " There shall be established for the purpose of this Act a body, to be known as the "Lembaga Penasihat Bandaraya Kuala Lumpur" or, in English, the "Advisory Board of the City of Kuala Lumpur", to advise the Commissioner upon such matters connected with the administration of the City as the Yang di-Pertuan 13 Agong may by order prescribe, and upon any questions referred to the Advisory Board by the Minister or the Commissioner." [22] Section 64 of Act 267 empowers the Authority appointed under Act 197, with the approval of the Minister, to make "rules generally for the better carrying out of the provisions of" Act 267. In the exercise of the powers conferred by that section 64, the Authority, with the approval of the Minister, legislated the Planning Rules. The Planning (Development) Rules, 1970 [23] Rule 5 of the Planning (Development) Rules 1970 prescribed that public hearings will only be convened where the planning permission is in respect of a development which involves an increase in residential density or change of use of land. The right to object is applicable where the application for planning permission in respect of development involves an increase in residential density or change of use of land. [24] If the Commissioner is of the opinion that the proposed development is proper but requires further inquiry he shall, by way of advertisement give notice of the proposed development and of the right to make objections by any person claiming to be the registered owners of lands adjoining the land to which the application relates. The registered landowner may, within fourteen days from the date of advertisement, submit his objection, in writing to the Commissioner and when submitting his objection, he shall indicate his name, lot number and local postal address. The Commissioner shall then fix a time and place to hear the registered landowners who have filed their objections in respect of the proposed development: 14
Upon receipt of an application for planning permission in respect of a development which involves an increase in residential density or change of use of land, the Commissioner shall determine whether the proposed development—
is proper and may, subject to further inquiry, be considered; or
is inappropriate for the purpose of proper planning.
If the Commissioner is of the opinion that the proposed development is inappropriate for the purpose of proper planning, he shall reject the application.
If the Commissioner is of the opinion that the proposed development is proper and may, subject to further inquiry be considered, he shall, by way of advertisement in four local papers which shall be in the national language, English language, Chinese language and Tamil language, give notice of the proposed development and of the right to make objections by any person claiming to be—
the registered owners of lands adjoining the land to which the application relates;
the registered owners of lands separated by any road, lane, drain or reserved land the width of which does not exceed twenty meters and whose lands would be adjoining the land to which the application relates had the lands not been separated by such road, lane, drain or reserved land; and
the registered owners of land located within the distance of two hundred metres from the boundary of the land to which the application relates if, the access road to the land to which the application relates is a cul-de-sac and the registered owners of land use the same cul-de-sac.
The advertisement as required under paragraph (3) shall be advertised for three consecutive days and the space of the advertisement column shall not be less than 9 cm x 15 cm. 15
Any registered landowner as specified in paragraph (3)(a), (b) and (c) may, within fourteen days from the date of advertisement, submit his objection, in writing to the Commissioner and when submitting his objection he shall indicate clearly his name, lot number and local postal address.
The Commissioner shall, after the expiry of the time specified in paragraph
(5), fix a time and place to hear the registered landowners who have filed their objections in respect of the proposed development.
The Commissioner may, after taking into consideration the objections, if any, grant or refuse to issue the planning permission in respect of the proposed development.
The decision of the Commissioner shall be conveyed in writing and sent by way of registered post to the applicant and those who have filed their objections…. (See: Rule 5 of the Planning (Development) Rules 1970). Analysis and decision [25] Before any decision on the application for planning permission is made, the applicants' objections must be heard and considered. This Court in the case of Datuk Bandar Kuala Lumpur v. Zain Azahari bin Zainal Abidin [1997] 2 CLJ 248 said: First, a public decision-maker - and the present appellant is such a person - upon whom a power or discretion is vested by Parliament is akin to a trustee. He is under an obligation to exercise it reasonably and in accordance with the terms of the relevant statute that confers the power or discretion. It matters not a jot to the principle that the language employed in the conferment of the power or discretion is of wide amplitude. This much was made clear by the former Federal Court in Pengarah Tanah Dan Galian, Wilayah Persekutuan V. Sri Lempah Enterprise Sdn. Bhd [1978] 1 LNS 143, considered by all concerned to be the leading case upon the subject. And it is appropriate that we remind ourselves of what fell from the Court on that occasion. 16 [26] Natural justice is a common law concept which implies fairness, reasonableness, equality and equity. Section 22 of Act 267 confers discretion upon the respondent in matters of planning approval. Public authorities must be reminded that the discretion conferred by statute is not unfettered as it imposes restrictions on the exercise of such discretion. It requires the respondent to take into account any objection and/or concern raised by persons who will be affected by the proposed development. There must also be a reasoned decision by the respondent when refusing or granting approval. A public authority, such as the respondent holds a heavy responsibility to carry out its function with due care and diligence when considering an application for planning permission especially so, if the proposed development will impact on the density and traffic flow in the residential area. A decision by the respondent regarding any proposed development must not be done with haste. [27] In the instant appeal before us, one of the main complaints of the applicants is the lack of detailed explanation and/or clarification by the respondents about the proposed development. The applicants together with the other registered owners had requested for technical reports during the inquiry that was held. One of the concerns of the applicants was the lack of awareness of the prevailing traffic condition in the residential area. Troubled by the lack of knowledge, the applicants through their lawyers took the initiative to furnish the respondent with photographs of the current traffic condition in the area. 17 [28] The proposed development will result in an increase in density, which will ultimately lead to traffic issues; clogging the ingress and egress within the residential area. As the public authority conferred by statute to be in charge of planning and development of Kuala Lumpur, the respondent has legal and social obligations to consider carefully and take into account the concerns of the residents before approving or rejecting any proposed development. The respondent should not deliberately or otherwise ignore its legal obligations under the law. [29] It is a fundamental principle of administrative law that a public body may only do what it is empowered or required to do by statute, whether expressly or by necessary implication. Thus, the respondent must make a decision that lies within the parameters of its governing legislation. [30] The case of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 established an important principle widely used in administrative law. In summary, the courts may only intervene to find that an authority had acted unreasonably when a decision had taken into account matters that it ought not to have, or disregarded matters which it should have. Within that framework, the discretion of the executive may not normally be challenged, unless the decision was so absurd that no sensible authority so circumstanced could have possibly so concluded. [31] It is the submission of learned counsel for the applicants that the respondent breached both components of natural justice; the rule of hearing or Audi Alteram Partem (‘hear the other side' or both sides must be heard 18 before passing any order") and the rule against bias or in Latin, Nemo Judex In Sua Causa ("no-one is judge in his own cause"). [32] We say, with respect, that the learned High Court Judge had fundamentally erred in law and fact when she concluded as follows: [29] Therefore, the Datuk Bandar has not made any decision whether to grant or to refuse the planning permission in respect of the proposed development of Lot 9885, Mukim Setapak, Kuala Lumpur. What the Datuk Bandar KL did was to conduct a meeting or an inquiry to hear objections from registered owners adjoining the proposed development within defined limits. This is a requirement of the law pursuant to r. 5(6) of the Planning Rules. [30] I am therefore of the considered opinion that this application is premature as the Datuk Bandar KL has not made any decision under s. 22 of Act 267, as to whether to grant or to refuse the planning permission in respect of the proposed development. As such, the applicants cannot be said to be adversely affected as no decision has been made by the Datuk Bandar with regards to the planning application." [31] The applicants can only be said to be adversely affected within the meaning of O. 53 r. 2(4) of the ROC 2012 if the Datuk Bandar grants the application for the planning permission for the development of Lot 9885, Mukim Setapak, Kuala Lumpur under s. 22 of Act 267. [33] The failure by the respondent to give full disclosure of the proposed planning and together with the technical report deprived the applicants of a full an impartial hearing. The technical report requested could have assisted to allay any of the appellants' concerns. The nonchalant attitude of the respondent in failing to furnish the technical report and comment on the 19 photos of the traffic condition left many questions, reservations and concerns of the applicants as residents unanswered. [34] The Federal Court in Malaysia System Bhd v. Wan Sa'adi Wan Mustafa [2015] 1 CLJ 295 through the judgment of Richard Malanjum, CJ (Sabah & Sarawak) (as he then was) said: It is important to bear in mind that the principles of natural justice should not be "unreasonably and unnaturally extended to frustrate the process of law". It would suffice to a large extent if the essential elements of the principles are followed, namely, that there must be an absence of bias or even appearance of bias, that there must be scope for a fair hearing and that irrelevant material must not be taken into account. [35] We agree with the submission of learned counsel for the respondent that under the relevant statutes there is no legal requirement for the respondent to furnish any technical reports. However, the technical report on the proposed development is a relevant and important document, in particular, the impact of density and the traffic within the residential area. Therefore, even though it may not be legally required for the respondent to furnish such document, such document would be material and essential assisting in the applicants to raise valid objections, if any, at the public inquiry, ultimately assisting the respondent in making an informed decision. [36] The public inquiry as prescribed under the Rule 5 of the Planning (Development) Rules 1970 is an essential and important process as the main objective of the aforesaid Rules is to assist the respondent in determining whether the proposed development is proper or inappropriate for the 20 purpose of proper planning. The respondent as the Commissioner, regulates, controls and plans the development of all lands within the Federal Territory and the use of such lands and buildings has an obligation to exercise it reasonably and in accordance with the terms of the relevant statute that confers the power or discretion. As a planner and regulator, the respondent must ensure that the interests and wellbeing of the residents have been duly considered before approving or rejecting any application for planning permission in particular where a proposed development which involves an increase in residential density or change of use of land. [37] In Ketua Pengarah Kastam v. Ho Kwan Seng [1975] 1 LNS 72; [1977] 2 MLJ 152 at p. 154 Raja Azlan Shah FCJ (as His Majesty then was) said this: In my opinion, the rule of natural justice that no man may be condemned unheard should apply to every case where an individual is adversely affected by an administrative action, no matter whether it is labelled "judicial", "quasi-judicial", or "administrative" or whether or not the enabling statute makes provision for a hearing. But the hearing may take many forms and strict insistence upon an inexorable right to the traditional courtroom procedure can lead to a virtual administrative breakdown. That is because a formal hearing is too slow, too technical and too costly. Lord Shaw's caveat on administrative adjudication that "judicial methods may... be entirely unsuitable, and produce delays, expenses, and public and private injury" is too well-known to be side-stepped: see Local Government Board v. Arlidge [1915] AC 120 138. In the last analysis, it depends on the subject-matter. The great need is to deal efficiently and fairly, rather than to preserve all the accouterments of the courtroom; the considerations of basic fairness are paramount. 21 [38] Applying, therefore, the above legal principles to the facts and circumstances of this case we find the applicants have a legitimate expectation that the Datuk Bandar will act fairly with regards to the public hearing. To do so the relevant technical reports must be given to the affected residents for them to raise any objection at the public inquiry. This, in turn, will enable the respondent to make a decision that will be in the interest of the residents in the affected area. [39] The KLCP 2020 maps out the city area and its specific land use. The purpose of zoning laws is to determine what type of business or residence can be placed in different parts of the city or a residential area. Further, the non-disclosure of the status of the land in question as well as the technical report by the respondent reeks of procedural impropriety. The decision of any public authority may be reviewed on the grounds of illegality, irrationality and possibly proportionality which permits the courts to scrutinise the decision not only for process but also for substance (See: R Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 FC).More so where the respondent in the particular facts and circumstances of this appeal is a interested party in the outcome of the respondent’s decision. Such conditions call for greater caution where conduction such an inquiry. In essence, the general rule is that there is no such thing as an absolute or unfettered discretion; a discretion must be exercised reasonably (See: Pengarah Tanah dan Galian v. Sri Lempah Enterprise [1979] 1 MLJ 135). [40] The central issue in this appeal relates to the principles which govern the exercise of discretion by the respondent. In our considered view, the 22 conferring of discretion on the respondent does not subject the applicants to the respondent's whim and fancy. The discretion must be exercised by the public authority honestly and in good faith and having regard to the provisions of the relevant statutes as mentioned above. It must not be in any manner be exercised arbitrarily, capriciously or unreasonably. Conclusion [41] In conclusion, after having heard the parties at length and upon careful perusal of the records of appeals, we are of the considered opinion that this is a case in which appellate intervention was warranted. For the reasons already given the appeal was allowed in terms of prayer (i) only. The order of the High Court was set aside. Costs of RM30,000 here and below subject to allocatur. sgd (HASNAH BINTI DATO’ MOHAMMED HASHIM) Judge Court of Appeal, Malaysia Putrajaya Date: 2.10.2019 23 Counsel for the Appellant David Samuel R Thanasegar Messrs. Chambers of Firdaus Advocates and Solicitors J-5-1, 5th Floor, Parklane Commercial Hub, Jalan SS 7/26, SS7, 47301 Petaling Jaya, Selangor. Counsel for the 1st Respondent Dato’ Hazman Ahmad Messrs. Omar Ismail Hazman & Co Advocate and Solicitors Lot 152-3-10 & 152-3-11, Kompleks Maluri, Jalan Jejaka, Taman Maluri, Cheras, 55100 Kuala Lumpur, Wilayah Persekutuan. Counsel for Watching Brief for developer (Lakaran Ceria Sdn Bhd) Lim Woi Kang Messrs. Rao & Kamal Advocate and Solicitors 15-3, 3rd Mile Square Business Centre, No. 151, Old Klang Road, 58100 Kuala Lumpur, Wilayah Persekutuan.

Content

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO: W-01(A)- 437-07/2018

Antara

Dato’ Mohamad Yusof Bin A Bakar

LIM CHENG IM … PERAYU-PERAYU DAN DATUK BANDAR KUALA LUMPUR … RESPONDEN [Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur (Bahagian Rayuan dan Kuasa-Kuasa Khas) Permohonan Semakan Kehakiman No.:WA-25-139-05/2017 Dalam Perkara Pendengaran Bantahan Pemunya-Pemunya Sama Sempadan di bawah Kaedah 5(4), Kaedah-Kaedah Rancangan (Pembangunan) 1970, yang diadakan oleh Datuk Bandar Kuala Lumpur pada 27.2.2017 bagi permohonan cadangan membina 3 blok pangsapuri (1532 Unit) yang mengandungi (i) Blok A - 52 Tingkat Pangsapuri (538 Unit); (ii) Blok B - 52 Tingkat Pangsapuri (534 Unit); dan Blok C - 40 Tingkat (460 Unit Rumah Mampu Milik); di atas Lot PT. 9885, Jalan 3/51B, Mukim Setapak, Wilayah Persekutuan Kuala Lumpur; Dan 2 Dalam Perkara Bahagian III dan Bahagian IV Akta (Perancangan) Wilayah Persekutuan Kuala Lumpur 1982; Dan Dalam Perkara Kaedah-Kaedah Rancangan (Pembangunan) 1970; Dan Dalam Perkara Permohonan Semakan Kehakiman di bawah Aturan 53, Kaedah-Kaedah Mahkamah 2012; Dan Dalam Perkara Permohonan Untuk

Perintah

para

Larangan di bawah Aturan 53, Kaedah 2(1) Kaedah-Kaedah Mahkamah 2012 dan Perenggan 1 Jadual kepada Akta Mahkamah Kehakiman 1964; Dan Dalam Perkara Permohonan Untuk Deklarasi di bawah Aturan 53, Kaedah 2(2) Kaedah-Kaedah Mahkamah 2012. ANTARA 1. DATO’ MOHAMMAD YUSOF BIN A BAKAR

LIM CHENG IM … PEMOHON-PEMOHON DAN DATUK BANDAR KUALA LUMPUR ... RESPONDEN] (An appeal against the decision of YA Azizah bt Nawawi, Judge, High Court at Kuala Lumpur made on 26.6.2018) 3 CORAM ABDUL RAHMAN SEBLI, JCA MARY LIM THIAM SUAN, JCA HASNAH MOHAMMED HASHIM, JCA JUDGMENT [1] An application for judicial review under Order 53 Rules of Court 2012 (ROC) filed by the appellants as applicants was dismissed by the High Court on 26.6.2018. Hence, this appeal was brought by the appellants. We heard this appeal on 13.3.2019 and after perusing the Records of Appeal, the written submissions filed by the respective learned Counsels and upon hearing learned Counsels, we allowed the appeal. [2] For ease of reference, in this judgment, the parties will be referred to as they were in the High Court. Material Facts [3] The applicants' application sought the following orders:

a declaration that the meeting/inquiry to hear the objections of registered owners of properties adjoining the proposed development within defined limits conducted by the Datuk Bandar Kuala Lumpur (‘DBKL') on 27.2.2017 in respect of the proposal to build three (3) blocks of apartments on Lot PT. 9885, Jalan 3/51B, Mukim Setapak, Kuala Lumpur is null and void; 4

(ii) an order of Prohibition to prohibit the Datuk Bandar from taking any further proceedings concerning the meeting/inquiry held on 27.2.2017 and/or making a decision with regards to the proposed development of the three (3) blocks of apartments on Lot PT. 9885, Jalan 3/51B, Mukim Setapak, Kuala Lumpur; and

III

(iii) pursuant to Order 53 Rule 3(5) ROC, an order to stay all proceedings and/or any further steps taken by DBKL in relation to the meeting/inquiry held on 27.2.2017 and/or making a decision with regards to the proposed development of the three

blocks of apartments on Lot PT. 9885, Jalan 3/51B, Mukim Setapak, Kuala Lumpur. [4] The grounds of the application as stated in the Statement under Order 53 r 3(2) ROC are as follows:

no full disclosure during the meeting on 27.7.2017 and a breach of the principle ‘audi alteram partem';

(ii) the Datuk Bandar was biased, as the application was made by the owner of Lot PT 9885, Yayasan Wilayah Persekutuan (the Federal Territory Foundation) of which the Datuk Bandar himself is one of the members of the Board of Trustees;

III

(iii) the Datuk Bandar will act upon the instruction of the Minister of Federal Territory instead of exercising his discretion under the Federal Territory (Planning) Act 1982 (‘Act 267’); and 5

(iv) the applicants have a legitimate expectation that the Datuk Bandar will act fairly with regards to the meeting on 27.2.2017. [5] The applicants are registered owners of properties described as Lot 16622 and Lot 16587 located in Taman Tiara Titiwangsa, Kuala Lumpur (‘the residential area'). The residential area covering an area of 50 acres consists of 250 bungalow units. The applicants' properties are in close proximity to the proposed development on Lot PT. 9885. Originally, Lot PT 9885 covering 10.3 acres was zoned as reserved land for a sewerage plant. However, according to Draft Kuala Lumpur City Plan 2020 in 2008 (‘Draft KLCP') Lot PT 9885 was re-zoned as an area for a community centre and open space. [6] Through an advertisement in a Chinese newspaper the applicants discovered that there was an application for planning permission of a proposed development concerning the aforesaid Lot PT 9885. The proposed development will ultimately increase the density of the residential area from 60 persons per acre to 800 persons per acre. Unhappy with the planning permission application for the proposed development in the residential area, the landowners met with the representatives of the respondent to obtain further particulars of the proposed development. A meeting was held on 20.12.2016 where the applicants together with the owners of other properties (through their representatives) requested for clarification from the respondent, in particular:

the reason for not erecting any signage at the site of Lot PT 9885 giving particulars pf the proposed development; and 6

(ii) requested that the respondent furnish the following technical reports as the proposed development will result in a dramatic increase of density i.e 60 to 800 persons per acre and the change in the use of the land in question:

the proposed development report;

traffic assessment report;

social impact report; and

any other related reports. (‘the technical reports’) [7] The representative of the respondent informed the applicants that the technical reports were still in the process of being completed and assured that once completed, a copy will be given to the applicants during the inquiry. The applicants felt that the technical reports should have been given not only before the scheduled inquiry, but even before the respondent advertised in the Chinese newspaper for adjacent landowners to raise their objections in writing as the applicants would require time to study the reports. [8] As required under the relevant laws the applicants were given two (2) weeks to submit any objection in writing to the respondent. Fifty-three (53) adjacent landowners submitted their written objections on 28.12.2016 without the benefit of the technical reports. To date, the applicants have yet to receive a copy of the technical reports by the respondent. [9] Unhappy with the lackadaisical attitude coupled with lukewarm response of the respondent, on 23.1.2017 the applicants through their 7 representative issued a letter dated 20.1.2017 to the respondent's Department of Integrity [See: pages 215-216 ROA Vol 2(1)]. [10] Regrettably, there was no response from the respondent's Department of Integrity. The respondent subsequently issued a notice dated 7.2.2017 inviting the applicants and other affected landowners to attend an inquiry on 27.2.2017. The applicants, as well as the other affected landowners, attended the inquiry; however, there was no explanation or clarification on the proposed development was given at the inquiry by the respondent. The respondent also did not give any reason why Lot 9885 was considered for such a big development contrary to the terms of the draft KLCP. [11] At the inquiry the residents raised their concerns about the traffic condition within the residential area. Surprisingly, the representatives of the respondent who attended the inquiry were obliviously unaware of the severe traffic condition in the area. As the respondent was not aware of the traffic condition in the residential area, the 2nd applicant, through his representative, send an email dated 28.12.2017, a day after the inquiry, enclosing photographs showing the traffic congestion experienced by the residents. [12] Dissatisfied with the manner the inquiry was conducted, the applicants together with the other landowners appointed solicitors to conduct a search on Lot 9885 and discovered that the title was issued to the Yayasan Wilayah Persekutuan (‘YWP') as the registered owner. Through the search conducted it was also discovered that the Jawatankuasa Kerja Tanah Wilayah Persekutuan (‘Jawatankuasa Kerja') granted the ownership to YWP for a premium of RM23 million. The premium was paid sometime in 2014 8 and Lot 9885 was then pledged by the YWP to Malayan Banking Berhad for the purpose of a loan. [13] The search also revealed that the Minister of Federal Territory was a director of YWP as well as the Chairman of the Jawatankuasa Kerja. The applicants through their solicitors took immediate steps and issued letters dated 24.3.2017 and 18.4.2017 to the respondent demanding that the inquiry on 27.12.2017 be declared as null and void and that the respondent be refrained from making any further decision and steps in relation to the proposed development. The High Court [14] The learned High Court Judge's findings can be summarised as follows:

On the issue of breach of natural justice, rule 5 of the Planning Rules does not require the respondent to furnish reports before the applicants can submit their objection. There is no such legal requirement under the said Rules as it only gives the right to the applicant to be present to raise objections. Since there is no statutory requirement, there is no breach of natural justice. The applicants cannot complain that they have been denied of their rights. (See: paragraphs [21] – [28] of the Grounds of Judgment).

(ii) In respect of the issue of bias, the inquiry was not conducted by the respondent, the Mayor but by the relevant department of DBKL. The applicants' complaints pertained specifically to 9 the inquiry; therefore, the issue of bias does not arise and if so will only be relevant if the development order is challenged by the applicants. (See: paragraphs [29] - [32] of the Grounds of Judgment).

III

(iii) On legitimate expectation, the issue is premature as the respondent has not made any decision under section 22 of the Federal Territory (Planning) Act 1982 (‘Act 267'). What the applicants are seeking to review is not a decision, direction, acts or omission, but an inquiry held on 27.2.2017, which the respondent had to conduct pursuant to rule 5 of the Planning Rules. (See: paragraphs [33] – [41] of the Grounds of Judgment). The Statutory Framework [15] To appreciate our reasoning, it will be useful to set out the provisions of the relevant Acts and Rules. The Commissioner: Appointment and Functions [16] Act 267 is an Act for the control and regulating of proper planning in the Federal Territory, for the levying of development charges, and for purposes connected therewith or ancillary thereto. Section 3 of Act 267 provides: The Minister shall be responsible for general policy with respect to the planning of the development of all lands within the Federal Territory and (subject to Clauses (5) and (6) of Article 91 of the Constitution) of the use of such lands and buildings and for such purposes the Minister may give directions of a 10 general character or specific in nature not inconsistent with the provisions of this Act and the Commissioner shall give effect to such directions. [17] Section 5 of Act 267 prescribes the powers and functions of the Commissioner:

The Commissioner is hereby appointed to exercise all the functions and powers conferred and to perform the duties imposed on him by this Act.

In his exercise of any functions and powers conferred or in his performance of any duties imposed by this Act, the Commissioner shall not be subject to the provisions of section 5 of the Federal Capital Act 1960; and any provisions in that Act referring to the Lembaga Penasihat Kuala Lumpur established under the said section 5 shall not apply to the Commissioner in his exercising of the functions and powers and in his performance of his duties under this Act.

Whereby or under this Act the Commissioner is empowered to exercise any powers or to perform any duties, he may in writing delegate subject to such conditions and restrictions as may be specified in such written delegation, the exercise of such powers or the performance of such duties to any person described by name or office: Provided that nothing in this subsection shall apply to any power to make subsidiary legislation conferred upon the Commissioner by or under this Act.

Where the Commissioner delegates the exercise of any powers or the performance of any duties to any person pursuant to subsection (3), the person so delegated shall in this Act be referred to as an authorized officer.

The Commissioner may appoint with the approval of the Minister and subject to such terms and conditions as may be specified in the letter of appointment, agents to transact any business or to do any act required to be transacted or done in the execution of his functions, powers and duties or for the better carrying into effect the purpose of this Act; and the agent so appointed shall in this Act be referred to as the authorised agent. 11 [18] The appointment of the Commissioner is pursuant to section 4 of the Federal Capital Act 1960 (‘Act 190’). Section 2 of Act 190 defines the Commissioner as the Datuk Bandar Kuala Lumpur or, in English, the Commissioner of the City of Kuala Lumpur, appointed under section 4 of the Act:

The municipal affairs of the City of Kuala Lumpur shall be administered by the Commissioner of the City of Kuala Lumpur.

The Commissioner shall be appointed by the Yang di-Pertuan Agong for a term of five years or, if the Yang di-Pertuan Agong in any particular case so determines, for such shorter term as may be so determined.

Subject to this Act, the Commissioner shall hold office upon such conditions as the Yang di-Pertuan Agong may from time to time determine……. [19] Under Act 190 the Commissioner is empowered to exercise any powers or perform any duties and he may by an instrument in writing delegate, subject to such conditions and restrictions as may be prescribed in such instrument, the exercise of such powers or the performance of such duties to any person described by name or office. Similarly, under section 6 of Act 267 the Commissioner is empowered to exercise all the functions and powers conferred and to perform the duties imposed on him by the Act:

Subject to the provisions of this Act, the functions of the Commissioner shall be to regulate, control and plan the development of all lands within the Federal Territory and the use of such lands and buildings and to perform any such other functions as the Minister may assign to him.

In particular and without prejudice to the generality of the foregoing provisions, the Commissioner may, and shall if directed by the Minister— 12

prepare and implement the development plan;

undertake, assist and encourage the collection, maintenance and publication of statistics, bulletins and other publications relating to town planning;

prepare and furnish reports relating to the working of this Act; and

perform any other function which is supplemental, incidental or consequential to any of the functions aforesaid or which may be assigned by the Minister. [20] The Commissioner is empowered by statute to exercise any power or to perform any duty and may in writing delegate, subject to such conditions and restrictions as may be specified in such written delegation, the exercise of such power or the performance of such duty to any person described by name or office. The Commissioner is tasked by different statutes to carry out specific functions in relation to the municipal affairs of Federal Territory and under Act 267 to regulate, control and plan the development of all lands within the Federal Territory and the use of such lands and buildings. [21] The Advisory Board or the Lembaga Penasihat Bandaraya Kuala Lumpur is appointed to advise the Commissioner upon such matters connected with the administration of Kuala Lumpur as the Yang di-Pertuan Agong may by order prescribe, and upon any questions referred to the Advisory Board by the Minister or the Commissioner (See: section 6 Act 190): " There shall be established for the purpose of this Act a body, to be known as the "Lembaga Penasihat Bandaraya Kuala Lumpur" or, in English, the "Advisory Board of the City of Kuala Lumpur", to advise the Commissioner upon such matters connected with the administration of the City as the Yang di-Pertuan 13 Agong may by order prescribe, and upon any questions referred to the Advisory Board by the Minister or the Commissioner." [22] Section 64 of Act 267 empowers the Authority appointed under Act 197, with the approval of the Minister, to make "rules generally for the better carrying out of the provisions of" Act 267. In the exercise of the powers conferred by that section 64, the Authority, with the approval of the Minister, legislated the Planning Rules. The Planning (Development) Rules, 1970 [23] Rule 5 of the Planning (Development) Rules 1970 prescribed that public hearings will only be convened where the planning permission is in respect of a development which involves an increase in residential density or change of use of land. The right to object is applicable where the application for planning permission in respect of development involves an increase in residential density or change of use of land. [24] If the Commissioner is of the opinion that the proposed development is proper but requires further inquiry he shall, by way of advertisement give notice of the proposed development and of the right to make objections by any person claiming to be the registered owners of lands adjoining the land to which the application relates. The registered landowner may, within fourteen days from the date of advertisement, submit his objection, in writing to the Commissioner and when submitting his objection, he shall indicate his name, lot number and local postal address. The Commissioner shall then fix a time and place to hear the registered landowners who have filed their objections in respect of the proposed development: 14

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

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

is inappropriate for the purpose of proper planning.

If the Commissioner is of the opinion that the proposed development is inappropriate for the purpose of proper planning, he shall reject the application.

If the Commissioner is of the opinion that the proposed development is proper and may, subject to further inquiry be considered, he shall, by way of advertisement in four local papers which shall be in the national language, English language, Chinese language and Tamil language, give notice of the proposed development and of the right to make objections by any person claiming to be—

the registered owners of lands adjoining the land to which the application relates;

the registered owners of lands separated by any road, lane, drain or reserved land the width of which does not exceed twenty meters and whose lands would be adjoining the land to which the application relates had the lands not been separated by such road, lane, drain or reserved land; and

the registered owners of land located within the distance of two hundred metres from the boundary of the land to which the application relates if, the access road to the land to which the application relates is a cul-de-sac and the registered owners of land use the same cul-de-sac.

The advertisement as required under paragraph (3) shall be advertised for three consecutive days and the space of the advertisement column shall not be less than 9 cm x 15 cm. 15

Any registered landowner as specified in paragraph (3)(a), (b) and (c) may, within fourteen days from the date of advertisement, submit his objection, in writing to the Commissioner and when submitting his objection he shall indicate clearly his name, lot number and local postal address.

The Commissioner shall, after the expiry of the time specified in paragraph

(5), fix a time and place to hear the registered landowners who have filed their objections in respect of the proposed development.

The Commissioner may, after taking into consideration the objections, if any, grant or refuse to issue the planning permission in respect of the proposed development.

The decision of the Commissioner shall be conveyed in writing and sent by way of registered post to the applicant and those who have filed their objections…. (See: Rule 5 of the Planning (Development) Rules 1970). Analysis and decision [25] Before any decision on the application for planning permission is made, the applicants' objections must be heard and considered. This Court in the case of Datuk Bandar Kuala Lumpur v. Zain Azahari bin Zainal Abidin [1997] 2 CLJ 248 said: First, a public decision-maker - and the present appellant is such a person - upon whom a power or discretion is vested by Parliament is akin to a trustee. He is under an obligation to exercise it reasonably and in accordance with the terms of the relevant statute that confers the power or discretion. It matters not a jot to the principle that the language employed in the conferment of the power or discretion is of wide amplitude. This much was made clear by the former Federal Court in Pengarah Tanah Dan Galian, Wilayah Persekutuan V. Sri Lempah Enterprise Sdn. Bhd [1978] 1 LNS 143, considered by all concerned to be the leading case upon the subject. And it is appropriate that we remind ourselves of what fell from the Court on that occasion. 16 [26] Natural justice is a common law concept which implies fairness, reasonableness, equality and equity. Section 22 of Act 267 confers discretion upon the respondent in matters of planning approval. Public authorities must be reminded that the discretion conferred by statute is not unfettered as it imposes restrictions on the exercise of such discretion. It requires the respondent to take into account any objection and/or concern raised by persons who will be affected by the proposed development. There must also be a reasoned decision by the respondent when refusing or granting approval. A public authority, such as the respondent holds a heavy responsibility to carry out its function with due care and diligence when considering an application for planning permission especially so, if the proposed development will impact on the density and traffic flow in the residential area. A decision by the respondent regarding any proposed development must not be done with haste. [27] In the instant appeal before us, one of the main complaints of the applicants is the lack of detailed explanation and/or clarification by the respondents about the proposed development. The applicants together with the other registered owners had requested for technical reports during the inquiry that was held. One of the concerns of the applicants was the lack of awareness of the prevailing traffic condition in the residential area. Troubled by the lack of knowledge, the applicants through their lawyers took the initiative to furnish the respondent with photographs of the current traffic condition in the area. 17 [28] The proposed development will result in an increase in density, which will ultimately lead to traffic issues; clogging the ingress and egress within the residential area. As the public authority conferred by statute to be in charge of planning and development of Kuala Lumpur, the respondent has legal and social obligations to consider carefully and take into account the concerns of the residents before approving or rejecting any proposed development. The respondent should not deliberately or otherwise ignore its legal obligations under the law. [29] It is a fundamental principle of administrative law that a public body may only do what it is empowered or required to do by statute, whether expressly or by necessary implication. Thus, the respondent must make a decision that lies within the parameters of its governing legislation. [30] The case of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 established an important principle widely used in administrative law. In summary, the courts may only intervene to find that an authority had acted unreasonably when a decision had taken into account matters that it ought not to have, or disregarded matters which it should have. Within that framework, the discretion of the executive may not normally be challenged, unless the decision was so absurd that no sensible authority so circumstanced could have possibly so concluded. [31] It is the submission of learned counsel for the applicants that the respondent breached both components of natural justice; the rule of hearing or Audi Alteram Partem (‘hear the other side' or both sides must be heard 18 before passing any order") and the rule against bias or in Latin, Nemo Judex In Sua Causa ("no-one is judge in his own cause"). [32] We say, with respect, that the learned High Court Judge had fundamentally erred in law and fact when she concluded as follows: [29] Therefore, the Datuk Bandar has not made any decision whether to grant or to refuse the planning permission in respect of the proposed development of Lot 9885, Mukim Setapak, Kuala Lumpur. What the Datuk Bandar KL did was to conduct a meeting or an inquiry to hear objections from registered owners adjoining the proposed development within defined limits. This is a requirement of the law pursuant to r. 5(6) of the Planning Rules. [30] I am therefore of the considered opinion that this application is premature as the Datuk Bandar KL has not made any decision under s. 22 of Act 267, as to whether to grant or to refuse the planning permission in respect of the proposed development. As such, the applicants cannot be said to be adversely affected as no decision has been made by the Datuk Bandar with regards to the planning application." [31] The applicants can only be said to be adversely affected within the meaning of O. 53 r. 2(4) of the ROC 2012 if the Datuk Bandar grants the application for the planning permission for the development of Lot 9885, Mukim Setapak, Kuala Lumpur under s. 22 of Act 267. [33] The failure by the respondent to give full disclosure of the proposed planning and together with the technical report deprived the applicants of a full an impartial hearing. The technical report requested could have assisted to allay any of the appellants' concerns. The nonchalant attitude of the respondent in failing to furnish the technical report and comment on the 19 photos of the traffic condition left many questions, reservations and concerns of the applicants as residents unanswered. [34] The Federal Court in Malaysia System Bhd v. Wan Sa'adi Wan Mustafa [2015] 1 CLJ 295 through the judgment of Richard Malanjum, CJ (Sabah & Sarawak) (as he then was) said: It is important to bear in mind that the principles of natural justice should not be "unreasonably and unnaturally extended to frustrate the process of law". It would suffice to a large extent if the essential elements of the principles are followed, namely, that there must be an absence of bias or even appearance of bias, that there must be scope for a fair hearing and that irrelevant material must not be taken into account. [35] We agree with the submission of learned counsel for the respondent that under the relevant statutes there is no legal requirement for the respondent to furnish any technical reports. However, the technical report on the proposed development is a relevant and important document, in particular, the impact of density and the traffic within the residential area. Therefore, even though it may not be legally required for the respondent to furnish such document, such document would be material and essential assisting in the applicants to raise valid objections, if any, at the public inquiry, ultimately assisting the respondent in making an informed decision. [36] The public inquiry as prescribed under the Rule 5 of the Planning (Development) Rules 1970 is an essential and important process as the main objective of the aforesaid Rules is to assist the respondent in determining whether the proposed development is proper or inappropriate for the 20 purpose of proper planning. The respondent as the Commissioner, regulates, controls and plans the development of all lands within the Federal Territory and the use of such lands and buildings has an obligation to exercise it reasonably and in accordance with the terms of the relevant statute that confers the power or discretion. As a planner and regulator, the respondent must ensure that the interests and wellbeing of the residents have been duly considered before approving or rejecting any application for planning permission in particular where a proposed development which involves an increase in residential density or change of use of land. [37] In Ketua Pengarah Kastam v. Ho Kwan Seng [1975] 1 LNS 72; [1977] 2 MLJ 152 at p. 154 Raja Azlan Shah FCJ (as His Majesty then was) said this: In my opinion, the rule of natural justice that no man may be condemned unheard should apply to every case where an individual is adversely affected by an administrative action, no matter whether it is labelled "judicial", "quasi-judicial", or "administrative" or whether or not the enabling statute makes provision for a hearing. But the hearing may take many forms and strict insistence upon an inexorable right to the traditional courtroom procedure can lead to a virtual administrative breakdown. That is because a formal hearing is too slow, too technical and too costly. Lord Shaw's caveat on administrative adjudication that "judicial methods may... be entirely unsuitable, and produce delays, expenses, and public and private injury" is too well-known to be side-stepped: see Local Government Board v. Arlidge [1915] AC 120 138. In the last analysis, it depends on the subject-matter. The great need is to deal efficiently and fairly, rather than to preserve all the accouterments of the courtroom; the considerations of basic fairness are paramount. 21 [38] Applying, therefore, the above legal principles to the facts and circumstances of this case we find the applicants have a legitimate expectation that the Datuk Bandar will act fairly with regards to the public hearing. To do so the relevant technical reports must be given to the affected residents for them to raise any objection at the public inquiry. This, in turn, will enable the respondent to make a decision that will be in the interest of the residents in the affected area. [39] The KLCP 2020 maps out the city area and its specific land use. The purpose of zoning laws is to determine what type of business or residence can be placed in different parts of the city or a residential area. Further, the non-disclosure of the status of the land in question as well as the technical report by the respondent reeks of procedural impropriety. The decision of any public authority may be reviewed on the grounds of illegality, irrationality and possibly proportionality which permits the courts to scrutinise the decision not only for process but also for substance (See: R Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 FC).More so where the respondent in the particular facts and circumstances of this appeal is a interested party in the outcome of the respondent’s decision. Such conditions call for greater caution where conduction such an inquiry. In essence, the general rule is that there is no such thing as an absolute or unfettered discretion; a discretion must be exercised reasonably (See: Pengarah Tanah dan Galian v. Sri Lempah Enterprise [1979] 1 MLJ 135). [40] The central issue in this appeal relates to the principles which govern the exercise of discretion by the respondent. In our considered view, the 22 conferring of discretion on the respondent does not subject the applicants to the respondent's whim and fancy. The discretion must be exercised by the public authority honestly and in good faith and having regard to the provisions of the relevant statutes as mentioned above. It must not be in any manner be exercised arbitrarily, capriciously or unreasonably. Conclusion [41] In conclusion, after having heard the parties at length and upon careful perusal of the records of appeals, we are of the considered opinion that this is a case in which appellate intervention was warranted. For the reasons already given the appeal was allowed in terms of prayer (i) only. The order of the High Court was set aside. Costs of RM30,000 here and below subject to allocatur. sgd (HASNAH BINTI DATO’ MOHAMMED HASHIM) Judge Court of Appeal, Malaysia Putrajaya Date: 2.10.2019 23 Counsel for the Appellant David Samuel R Thanasegar Messrs. Chambers of Firdaus Advocates and Solicitors J-5-1, 5th Floor, Parklane Commercial Hub, Jalan SS 7/26, SS7, 47301 Petaling Jaya, Selangor. Counsel for the 1st Respondent Dato’ Hazman Ahmad Messrs. Omar Ismail Hazman & Co Advocate and Solicitors Lot 152-3-10 & 152-3-11, Kompleks Maluri, Jalan Jejaka, Taman Maluri, Cheras, 55100 Kuala Lumpur, Wilayah Persekutuan. Counsel for Watching Brief for developer (Lakaran Ceria Sdn Bhd) Lim Woi Kang Messrs. Rao & Kamal Advocate and Solicitors 15-3, 3rd Mile Square Business Centre, No. 151, Old Klang Road, 58100 Kuala Lumpur, Wilayah Persekutuan.

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Dato’ Mohamad Yusof Bin a Bakar v Datuk Bandar Kuala Lumpur (W-01(A)- 437-07/2018)

Court of Appeal of Malaysia13 Mar 2019

The written judgment as the court issued it, with the coram, case number, and source links. Every paragraph has its own anchor.

Outcome

What the court ordered

Larangan di bawah Aturan 53, Kaedah 2(1) Kaedah-Kaedah Mahkamah 2012 dan Perenggan 1 Jadual kepada Akta Mahkamah Kehakiman 1964; Dan Dalam Perkara Permohonan Untuk Deklarasi di bawah Aturan 53, Kaedah 2(2) Kaedah-Kaedah Mahkamah 2012. ANTARA 1. DATO’ MOHAMMAD YUSOF BIN A BAKAR
LIM CHENG IM … PEMOHON-PEMOHON DAN DATUK BANDAR KUALA LUMPUR ... RESPONDEN] (An appeal against the decision of YA Azizah bt Nawawi, Judge, High Court at Kuala Lumpur made on 26.6.2018) 3 CORAM ABDUL RAHMAN SEBLI, JCA MARY LIM THIAM SUAN, JCA HASNAH MOHAMMED HASHIM, JCA JUDGMENT [1] An application for judicial review under Order 53 Rules of Court 2012 (ROC) filed by the appellants as applicants was dismissed by the High Court on 26.6.2018. Hence, this appeal was brought by the appellants. We heard this appeal on 13.3.2019 and after perusing the Records of Appeal, the written submissions filed by the respective learned Counsels and upon hearing learned Counsels, we allowed the appeal. [2] For ease of reference, in this judgment, the parties will be referred to as they were in the High Court. Material Facts [3] The applicants' application sought the following orders:
a declaration that the meeting/inquiry to hear the objections of registered owners of properties adjoining the proposed development within defined limits conducted by the Datuk Bandar Kuala Lumpur (‘DBKL') on 27.2.2017 in respect of the proposal to build three (3) blocks of apartments on Lot PT. 9885, Jalan 3/51B, Mukim Setapak, Kuala Lumpur is null and void; 4
an order of Prohibition to prohibit the Datuk Bandar from taking any further proceedings concerning the meeting/inquiry held on 27.2.2017 and/or making a decision with regards to the proposed development of the three (3) blocks of apartments on Lot PT. 9885, Jalan 3/51B, Mukim Setapak, Kuala Lumpur; and
pursuant to Order 53 Rule 3(5) ROC, an order to stay all proceedings and/or any further steps taken by DBKL in relation to the meeting/inquiry held on 27.2.2017 and/or making a decision with regards to the proposed development of the three
blocks of apartments on Lot PT. 9885, Jalan 3/51B, Mukim Setapak, Kuala Lumpur. [4] The grounds of the application as stated in the Statement under Order 53 r 3(2) ROC are as follows:
no full disclosure during the meeting on 27.7.2017 and a breach of the principle ‘audi alteram partem';
the Datuk Bandar was biased, as the application was made by the owner of Lot PT 9885, Yayasan Wilayah Persekutuan (the Federal Territory Foundation) of which the Datuk Bandar himself is one of the members of the Board of Trustees;
the Datuk Bandar will act upon the instruction of the Minister of Federal Territory instead of exercising his discretion under the Federal Territory (Planning) Act 1982 (‘Act 267’); and 5
the applicants have a legitimate expectation that the Datuk Bandar will act fairly with regards to the meeting on 27.2.2017. [5] The applicants are registered owners of properties described as Lot 16622 and Lot 16587 located in Taman Tiara Titiwangsa, Kuala Lumpur (‘the residential area'). The residential area covering an area of 50 acres consists of 250 bungalow units. The applicants' properties are in close proximity to the proposed development on Lot PT. 9885. Originally, Lot PT 9885 covering 10.3 acres was zoned as reserved land for a sewerage plant. However, according to Draft Kuala Lumpur City Plan 2020 in 2008 (‘Draft KLCP') Lot PT 9885 was re-zoned as an area for a community centre and open space. [6] Through an advertisement in a Chinese newspaper the applicants discovered that there was an application for planning permission of a proposed development concerning the aforesaid Lot PT 9885. The proposed development will ultimately increase the density of the residential area from 60 persons per acre to 800 persons per acre. Unhappy with the planning permission application for the proposed development in the residential area, the landowners met with the representatives of the respondent to obtain further particulars of the proposed development. A meeting was held on 20.12.2016 where the applicants together with the owners of other properties (through their representatives) requested for clarification from the respondent, in particular:
the reason for not erecting any signage at the site of Lot PT 9885 giving particulars pf the proposed development; and 6
requested that the respondent furnish the following technical reports as the proposed development will result in a dramatic increase of density i.e 60 to 800 persons per acre and the change in the use of the land in question:
the proposed development report;
traffic assessment report;
social impact report; and
any other related reports. (‘the technical reports’) [7] The representative of the respondent informed the applicants that the technical reports were still in the process of being completed and assured that once completed, a copy will be given to the applicants during the inquiry. The applicants felt that the technical reports should have been given not only before the scheduled inquiry, but even before the respondent advertised in the Chinese newspaper for adjacent landowners to raise their objections in writing as the applicants would require time to study the reports. [8] As required under the relevant laws the applicants were given two (2) weeks to submit any objection in writing to the respondent. Fifty-three (53) adjacent landowners submitted their written objections on 28.12.2016 without the benefit of the technical reports. To date, the applicants have yet to receive a copy of the technical reports by the respondent. [9] Unhappy with the lackadaisical attitude coupled with lukewarm response of the respondent, on 23.1.2017 the applicants through their 7 representative issued a letter dated 20.1.2017 to the respondent's Department of Integrity [See: pages 215-216 ROA Vol 2(1)]. [10] Regrettably, there was no response from the respondent's Department of Integrity. The respondent subsequently issued a notice dated 7.2.2017 inviting the applicants and other affected landowners to attend an inquiry on 27.2.2017. The applicants, as well as the other affected landowners, attended the inquiry; however, there was no explanation or clarification on the proposed development was given at the inquiry by the respondent. The respondent also did not give any reason why Lot 9885 was considered for such a big development contrary to the terms of the draft KLCP. [11] At the inquiry the residents raised their concerns about the traffic condition within the residential area. Surprisingly, the representatives of the respondent who attended the inquiry were obliviously unaware of the severe traffic condition in the area. As the respondent was not aware of the traffic condition in the residential area, the 2nd applicant, through his representative, send an email dated 28.12.2017, a day after the inquiry, enclosing photographs showing the traffic congestion experienced by the residents. [12] Dissatisfied with the manner the inquiry was conducted, the applicants together with the other landowners appointed solicitors to conduct a search on Lot 9885 and discovered that the title was issued to the Yayasan Wilayah Persekutuan (‘YWP') as the registered owner. Through the search conducted it was also discovered that the Jawatankuasa Kerja Tanah Wilayah Persekutuan (‘Jawatankuasa Kerja') granted the ownership to YWP for a premium of RM23 million. The premium was paid sometime in 2014 8 and Lot 9885 was then pledged by the YWP to Malayan Banking Berhad for the purpose of a loan. [13] The search also revealed that the Minister of Federal Territory was a director of YWP as well as the Chairman of the Jawatankuasa Kerja. The applicants through their solicitors took immediate steps and issued letters dated 24.3.2017 and 18.4.2017 to the respondent demanding that the inquiry on 27.12.2017 be declared as null and void and that the respondent be refrained from making any further decision and steps in relation to the proposed development. The High Court [14] The learned High Court Judge's findings can be summarised as follows:
On the issue of breach of natural justice, rule 5 of the Planning Rules does not require the respondent to furnish reports before the applicants can submit their objection. There is no such legal requirement under the said Rules as it only gives the right to the applicant to be present to raise objections. Since there is no statutory requirement, there is no breach of natural justice. The applicants cannot complain that they have been denied of their rights. (See: paragraphs [21] – [28] of the Grounds of Judgment).
In respect of the issue of bias, the inquiry was not conducted by the respondent, the Mayor but by the relevant department of DBKL. The applicants' complaints pertained specifically to 9 the inquiry; therefore, the issue of bias does not arise and if so will only be relevant if the development order is challenged by the applicants. (See: paragraphs [29] - [32] of the Grounds of Judgment).
On legitimate expectation, the issue is premature as the respondent has not made any decision under section 22 of the Federal Territory (Planning) Act 1982 (‘Act 267'). What the applicants are seeking to review is not a decision, direction, acts or omission, but an inquiry held on 27.2.2017, which the respondent had to conduct pursuant to rule 5 of the Planning Rules. (See: paragraphs [33] – [41] of the Grounds of Judgment). The Statutory Framework [15] To appreciate our reasoning, it will be useful to set out the provisions of the relevant Acts and Rules. The Commissioner: Appointment and Functions [16] Act 267 is an Act for the control and regulating of proper planning in the Federal Territory, for the levying of development charges, and for purposes connected therewith or ancillary thereto. Section 3 of Act 267 provides: The Minister shall be responsible for general policy with respect to the planning of the development of all lands within the Federal Territory and (subject to Clauses (5) and (6) of Article 91 of the Constitution) of the use of such lands and buildings and for such purposes the Minister may give directions of a 10 general character or specific in nature not inconsistent with the provisions of this Act and the Commissioner shall give effect to such directions. [17] Section 5 of Act 267 prescribes the powers and functions of the Commissioner:
The Commissioner is hereby appointed to exercise all the functions and powers conferred and to perform the duties imposed on him by this Act.
In his exercise of any functions and powers conferred or in his performance of any duties imposed by this Act, the Commissioner shall not be subject to the provisions of section 5 of the Federal Capital Act 1960; and any provisions in that Act referring to the Lembaga Penasihat Kuala Lumpur established under the said section 5 shall not apply to the Commissioner in his exercising of the functions and powers and in his performance of his duties under this Act.
Whereby or under this Act the Commissioner is empowered to exercise any powers or to perform any duties, he may in writing delegate subject to such conditions and restrictions as may be specified in such written delegation, the exercise of such powers or the performance of such duties to any person described by name or office: Provided that nothing in this subsection shall apply to any power to make subsidiary legislation conferred upon the Commissioner by or under this Act.
Where the Commissioner delegates the exercise of any powers or the performance of any duties to any person pursuant to subsection (3), the person so delegated shall in this Act be referred to as an authorized officer.
The Commissioner may appoint with the approval of the Minister and subject to such terms and conditions as may be specified in the letter of appointment, agents to transact any business or to do any act required to be transacted or done in the execution of his functions, powers and duties or for the better carrying into effect the purpose of this Act; and the agent so appointed shall in this Act be referred to as the authorised agent. 11 [18] The appointment of the Commissioner is pursuant to section 4 of the Federal Capital Act 1960 (‘Act 190’). Section 2 of Act 190 defines the Commissioner as the Datuk Bandar Kuala Lumpur or, in English, the Commissioner of the City of Kuala Lumpur, appointed under section 4 of the Act:
The municipal affairs of the City of Kuala Lumpur shall be administered by the Commissioner of the City of Kuala Lumpur.
The Commissioner shall be appointed by the Yang di-Pertuan Agong for a term of five years or, if the Yang di-Pertuan Agong in any particular case so determines, for such shorter term as may be so determined.
Subject to this Act, the Commissioner shall hold office upon such conditions as the Yang di-Pertuan Agong may from time to time determine……. [19] Under Act 190 the Commissioner is empowered to exercise any powers or perform any duties and he may by an instrument in writing delegate, subject to such conditions and restrictions as may be prescribed in such instrument, the exercise of such powers or the performance of such duties to any person described by name or office. Similarly, under section 6 of Act 267 the Commissioner is empowered to exercise all the functions and powers conferred and to perform the duties imposed on him by the Act:
Subject to the provisions of this Act, the functions of the Commissioner shall be to regulate, control and plan the development of all lands within the Federal Territory and the use of such lands and buildings and to perform any such other functions as the Minister may assign to him.
In particular and without prejudice to the generality of the foregoing provisions, the Commissioner may, and shall if directed by the Minister— 12
prepare and implement the development plan;
undertake, assist and encourage the collection, maintenance and publication of statistics, bulletins and other publications relating to town planning;
prepare and furnish reports relating to the working of this Act; and
perform any other function which is supplemental, incidental or consequential to any of the functions aforesaid or which may be assigned by the Minister. [20] The Commissioner is empowered by statute to exercise any power or to perform any duty and may in writing delegate, subject to such conditions and restrictions as may be specified in such written delegation, the exercise of such power or the performance of such duty to any person described by name or office. The Commissioner is tasked by different statutes to carry out specific functions in relation to the municipal affairs of Federal Territory and under Act 267 to regulate, control and plan the development of all lands within the Federal Territory and the use of such lands and buildings. [21] The Advisory Board or the Lembaga Penasihat Bandaraya Kuala Lumpur is appointed to advise the Commissioner upon such matters connected with the administration of Kuala Lumpur as the Yang di-Pertuan Agong may by order prescribe, and upon any questions referred to the Advisory Board by the Minister or the Commissioner (See: section 6 Act 190): " There shall be established for the purpose of this Act a body, to be known as the "Lembaga Penasihat Bandaraya Kuala Lumpur" or, in English, the "Advisory Board of the City of Kuala Lumpur", to advise the Commissioner upon such matters connected with the administration of the City as the Yang di-Pertuan 13 Agong may by order prescribe, and upon any questions referred to the Advisory Board by the Minister or the Commissioner." [22] Section 64 of Act 267 empowers the Authority appointed under Act 197, with the approval of the Minister, to make "rules generally for the better carrying out of the provisions of" Act 267. In the exercise of the powers conferred by that section 64, the Authority, with the approval of the Minister, legislated the Planning Rules. The Planning (Development) Rules, 1970 [23] Rule 5 of the Planning (Development) Rules 1970 prescribed that public hearings will only be convened where the planning permission is in respect of a development which involves an increase in residential density or change of use of land. The right to object is applicable where the application for planning permission in respect of development involves an increase in residential density or change of use of land. [24] If the Commissioner is of the opinion that the proposed development is proper but requires further inquiry he shall, by way of advertisement give notice of the proposed development and of the right to make objections by any person claiming to be the registered owners of lands adjoining the land to which the application relates. The registered landowner may, within fourteen days from the date of advertisement, submit his objection, in writing to the Commissioner and when submitting his objection, he shall indicate his name, lot number and local postal address. The Commissioner shall then fix a time and place to hear the registered landowners who have filed their objections in respect of the proposed development: 14
Upon receipt of an application for planning permission in respect of a development which involves an increase in residential density or change of use of land, the Commissioner shall determine whether the proposed development—
is proper and may, subject to further inquiry, be considered; or
is inappropriate for the purpose of proper planning.
If the Commissioner is of the opinion that the proposed development is inappropriate for the purpose of proper planning, he shall reject the application.
If the Commissioner is of the opinion that the proposed development is proper and may, subject to further inquiry be considered, he shall, by way of advertisement in four local papers which shall be in the national language, English language, Chinese language and Tamil language, give notice of the proposed development and of the right to make objections by any person claiming to be—
the registered owners of lands adjoining the land to which the application relates;
the registered owners of lands separated by any road, lane, drain or reserved land the width of which does not exceed twenty meters and whose lands would be adjoining the land to which the application relates had the lands not been separated by such road, lane, drain or reserved land; and
the registered owners of land located within the distance of two hundred metres from the boundary of the land to which the application relates if, the access road to the land to which the application relates is a cul-de-sac and the registered owners of land use the same cul-de-sac.
The advertisement as required under paragraph (3) shall be advertised for three consecutive days and the space of the advertisement column shall not be less than 9 cm x 15 cm. 15
Any registered landowner as specified in paragraph (3)(a), (b) and (c) may, within fourteen days from the date of advertisement, submit his objection, in writing to the Commissioner and when submitting his objection he shall indicate clearly his name, lot number and local postal address.
The Commissioner shall, after the expiry of the time specified in paragraph
(5), fix a time and place to hear the registered landowners who have filed their objections in respect of the proposed development.
The Commissioner may, after taking into consideration the objections, if any, grant or refuse to issue the planning permission in respect of the proposed development.
The decision of the Commissioner shall be conveyed in writing and sent by way of registered post to the applicant and those who have filed their objections…. (See: Rule 5 of the Planning (Development) Rules 1970). Analysis and decision [25] Before any decision on the application for planning permission is made, the applicants' objections must be heard and considered. This Court in the case of Datuk Bandar Kuala Lumpur v. Zain Azahari bin Zainal Abidin [1997] 2 CLJ 248 said: First, a public decision-maker - and the present appellant is such a person - upon whom a power or discretion is vested by Parliament is akin to a trustee. He is under an obligation to exercise it reasonably and in accordance with the terms of the relevant statute that confers the power or discretion. It matters not a jot to the principle that the language employed in the conferment of the power or discretion is of wide amplitude. This much was made clear by the former Federal Court in Pengarah Tanah Dan Galian, Wilayah Persekutuan V. Sri Lempah Enterprise Sdn. Bhd [1978] 1 LNS 143, considered by all concerned to be the leading case upon the subject. And it is appropriate that we remind ourselves of what fell from the Court on that occasion. 16 [26] Natural justice is a common law concept which implies fairness, reasonableness, equality and equity. Section 22 of Act 267 confers discretion upon the respondent in matters of planning approval. Public authorities must be reminded that the discretion conferred by statute is not unfettered as it imposes restrictions on the exercise of such discretion. It requires the respondent to take into account any objection and/or concern raised by persons who will be affected by the proposed development. There must also be a reasoned decision by the respondent when refusing or granting approval. A public authority, such as the respondent holds a heavy responsibility to carry out its function with due care and diligence when considering an application for planning permission especially so, if the proposed development will impact on the density and traffic flow in the residential area. A decision by the respondent regarding any proposed development must not be done with haste. [27] In the instant appeal before us, one of the main complaints of the applicants is the lack of detailed explanation and/or clarification by the respondents about the proposed development. The applicants together with the other registered owners had requested for technical reports during the inquiry that was held. One of the concerns of the applicants was the lack of awareness of the prevailing traffic condition in the residential area. Troubled by the lack of knowledge, the applicants through their lawyers took the initiative to furnish the respondent with photographs of the current traffic condition in the area. 17 [28] The proposed development will result in an increase in density, which will ultimately lead to traffic issues; clogging the ingress and egress within the residential area. As the public authority conferred by statute to be in charge of planning and development of Kuala Lumpur, the respondent has legal and social obligations to consider carefully and take into account the concerns of the residents before approving or rejecting any proposed development. The respondent should not deliberately or otherwise ignore its legal obligations under the law. [29] It is a fundamental principle of administrative law that a public body may only do what it is empowered or required to do by statute, whether expressly or by necessary implication. Thus, the respondent must make a decision that lies within the parameters of its governing legislation. [30] The case of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 established an important principle widely used in administrative law. In summary, the courts may only intervene to find that an authority had acted unreasonably when a decision had taken into account matters that it ought not to have, or disregarded matters which it should have. Within that framework, the discretion of the executive may not normally be challenged, unless the decision was so absurd that no sensible authority so circumstanced could have possibly so concluded. [31] It is the submission of learned counsel for the applicants that the respondent breached both components of natural justice; the rule of hearing or Audi Alteram Partem (‘hear the other side' or both sides must be heard 18 before passing any order") and the rule against bias or in Latin, Nemo Judex In Sua Causa ("no-one is judge in his own cause"). [32] We say, with respect, that the learned High Court Judge had fundamentally erred in law and fact when she concluded as follows: [29] Therefore, the Datuk Bandar has not made any decision whether to grant or to refuse the planning permission in respect of the proposed development of Lot 9885, Mukim Setapak, Kuala Lumpur. What the Datuk Bandar KL did was to conduct a meeting or an inquiry to hear objections from registered owners adjoining the proposed development within defined limits. This is a requirement of the law pursuant to r. 5(6) of the Planning Rules. [30] I am therefore of the considered opinion that this application is premature as the Datuk Bandar KL has not made any decision under s. 22 of Act 267, as to whether to grant or to refuse the planning permission in respect of the proposed development. As such, the applicants cannot be said to be adversely affected as no decision has been made by the Datuk Bandar with regards to the planning application." [31] The applicants can only be said to be adversely affected within the meaning of O. 53 r. 2(4) of the ROC 2012 if the Datuk Bandar grants the application for the planning permission for the development of Lot 9885, Mukim Setapak, Kuala Lumpur under s. 22 of Act 267. [33] The failure by the respondent to give full disclosure of the proposed planning and together with the technical report deprived the applicants of a full an impartial hearing. The technical report requested could have assisted to allay any of the appellants' concerns. The nonchalant attitude of the respondent in failing to furnish the technical report and comment on the 19 photos of the traffic condition left many questions, reservations and concerns of the applicants as residents unanswered. [34] The Federal Court in Malaysia System Bhd v. Wan Sa'adi Wan Mustafa [2015] 1 CLJ 295 through the judgment of Richard Malanjum, CJ (Sabah & Sarawak) (as he then was) said: It is important to bear in mind that the principles of natural justice should not be "unreasonably and unnaturally extended to frustrate the process of law". It would suffice to a large extent if the essential elements of the principles are followed, namely, that there must be an absence of bias or even appearance of bias, that there must be scope for a fair hearing and that irrelevant material must not be taken into account. [35] We agree with the submission of learned counsel for the respondent that under the relevant statutes there is no legal requirement for the respondent to furnish any technical reports. However, the technical report on the proposed development is a relevant and important document, in particular, the impact of density and the traffic within the residential area. Therefore, even though it may not be legally required for the respondent to furnish such document, such document would be material and essential assisting in the applicants to raise valid objections, if any, at the public inquiry, ultimately assisting the respondent in making an informed decision. [36] The public inquiry as prescribed under the Rule 5 of the Planning (Development) Rules 1970 is an essential and important process as the main objective of the aforesaid Rules is to assist the respondent in determining whether the proposed development is proper or inappropriate for the 20 purpose of proper planning. The respondent as the Commissioner, regulates, controls and plans the development of all lands within the Federal Territory and the use of such lands and buildings has an obligation to exercise it reasonably and in accordance with the terms of the relevant statute that confers the power or discretion. As a planner and regulator, the respondent must ensure that the interests and wellbeing of the residents have been duly considered before approving or rejecting any application for planning permission in particular where a proposed development which involves an increase in residential density or change of use of land. [37] In Ketua Pengarah Kastam v. Ho Kwan Seng [1975] 1 LNS 72; [1977] 2 MLJ 152 at p. 154 Raja Azlan Shah FCJ (as His Majesty then was) said this: In my opinion, the rule of natural justice that no man may be condemned unheard should apply to every case where an individual is adversely affected by an administrative action, no matter whether it is labelled "judicial", "quasi-judicial", or "administrative" or whether or not the enabling statute makes provision for a hearing. But the hearing may take many forms and strict insistence upon an inexorable right to the traditional courtroom procedure can lead to a virtual administrative breakdown. That is because a formal hearing is too slow, too technical and too costly. Lord Shaw's caveat on administrative adjudication that "judicial methods may... be entirely unsuitable, and produce delays, expenses, and public and private injury" is too well-known to be side-stepped: see Local Government Board v. Arlidge [1915] AC 120 138. In the last analysis, it depends on the subject-matter. The great need is to deal efficiently and fairly, rather than to preserve all the accouterments of the courtroom; the considerations of basic fairness are paramount. 21 [38] Applying, therefore, the above legal principles to the facts and circumstances of this case we find the applicants have a legitimate expectation that the Datuk Bandar will act fairly with regards to the public hearing. To do so the relevant technical reports must be given to the affected residents for them to raise any objection at the public inquiry. This, in turn, will enable the respondent to make a decision that will be in the interest of the residents in the affected area. [39] The KLCP 2020 maps out the city area and its specific land use. The purpose of zoning laws is to determine what type of business or residence can be placed in different parts of the city or a residential area. Further, the non-disclosure of the status of the land in question as well as the technical report by the respondent reeks of procedural impropriety. The decision of any public authority may be reviewed on the grounds of illegality, irrationality and possibly proportionality which permits the courts to scrutinise the decision not only for process but also for substance (See: R Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 FC).More so where the respondent in the particular facts and circumstances of this appeal is a interested party in the outcome of the respondent’s decision. Such conditions call for greater caution where conduction such an inquiry. In essence, the general rule is that there is no such thing as an absolute or unfettered discretion; a discretion must be exercised reasonably (See: Pengarah Tanah dan Galian v. Sri Lempah Enterprise [1979] 1 MLJ 135). [40] The central issue in this appeal relates to the principles which govern the exercise of discretion by the respondent. In our considered view, the 22 conferring of discretion on the respondent does not subject the applicants to the respondent's whim and fancy. The discretion must be exercised by the public authority honestly and in good faith and having regard to the provisions of the relevant statutes as mentioned above. It must not be in any manner be exercised arbitrarily, capriciously or unreasonably. Conclusion [41] In conclusion, after having heard the parties at length and upon careful perusal of the records of appeals, we are of the considered opinion that this is a case in which appellate intervention was warranted. For the reasons already given the appeal was allowed in terms of prayer (i) only. The order of the High Court was set aside. Costs of RM30,000 here and below subject to allocatur. sgd (HASNAH BINTI DATO’ MOHAMMED HASHIM) Judge Court of Appeal, Malaysia Putrajaya Date: 2.10.2019 23 Counsel for the Appellant David Samuel R Thanasegar Messrs. Chambers of Firdaus Advocates and Solicitors J-5-1, 5th Floor, Parklane Commercial Hub, Jalan SS 7/26, SS7, 47301 Petaling Jaya, Selangor. Counsel for the 1st Respondent Dato’ Hazman Ahmad Messrs. Omar Ismail Hazman & Co Advocate and Solicitors Lot 152-3-10 & 152-3-11, Kompleks Maluri, Jalan Jejaka, Taman Maluri, Cheras, 55100 Kuala Lumpur, Wilayah Persekutuan. Counsel for Watching Brief for developer (Lakaran Ceria Sdn Bhd) Lim Woi Kang Messrs. Rao & Kamal Advocate and Solicitors 15-3, 3rd Mile Square Business Centre, No. 151, Old Klang Road, 58100 Kuala Lumpur, Wilayah Persekutuan.

Dato’ Mohamad Yusof Bin a Bakar v Datuk Bandar Kuala Lumpur (W-01(A)- 437-07/2018)

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Dato’ Mohamad Yusof Bin a Bakar v Datuk Bandar Kuala Lumpur (W-01(A)- 437-07/2018)

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