Noina Binti Baharuddin v yang Dipertua Majlis Perbandaran Ampang Jaya (BA-25-32-05/2025)

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JABATAN PERANCANGAN BANDAR DAN DESA

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KERAJAAN MALAYSIA ... RESPONDEN-RESPONDEN ALASAN PENGHAKIMAN (Lampiran 1) Introduction

Vide Enclosure 1, the Applicants prays for leave to file for Judicial Review for the following reliefs –

(i) an order of mandamus to compel the First and Second Respondents to trace all versions of the Draft Local Plan and the Draft Local Plan that was gazetted for the inspection of interested parties including the Applicants; and

After careful consideration of the cause papers and submissions on behalf of the Applicants and the Honourable Attorney General Malaysia (AG), this Court allowed the AG’s objections and dismissed Enclosure 1 as against the 5th and 7th Respondents. The application was allowed against the other Respondents. The following is the reasons for the decision. Background facts

The Applicants are residents of Ampang Jaya and were aggrieved by the Local Plan MPAJ 2035 (Replacement) prepared by the First and 2nd Respondents, approved by the 3rd and 4th Respondents and gazetted by the 6th Respondent.

They allege that there was procedural impropriety and fundamental flaws in the Draft Local Plan as there were discrepancies between the Draft Plan and the Final Plan in terms of land use and the depiction of environmentally sensitive areas.

They allege that these omissions and discrepancies contravene the requirements of section 12 Act 172 and the procedural impropriety deprived the residents of Ampang Jaya, the meaningful participation in the local planning process. AG’s objection – wrong parties

The AG objects to Enclosure 1 only in respect of the joinder of the 5th and 7th Respondents namely the National Physical Planning Council and the Federal Government.

The AG pointed out that the Applicants’ complaint was in respect of the Draft Local Plan and that all their complaints relate to the First to 3rd Respondents’ responsibilities under sections 12, 13 and 14 Act 172.

They referred to the various provisions in Act 172 which set out the roles and responsibilities of the authorities concerned. These provisions show that the preparation of a local plan is the responsibility of the local authority (2nd Respondent)

The 5th and 7th Respondents have no role to play in the entire planning process of a local plan as they do not exercise direct control over this process.

None of the reliefs sought by the Applicants are directed at the 5th and 7th Respondents and therefore their joinder in this application is an abuse of process.

The Applicants however argued that the 5th Respondent was a necessary party to their application as prescribed by section 2A Act 172 whereas the 7th Respondent is under a general duty to assist in ensuring the objectives of the national physical plan are achieved.

They cited Perbadanan Pengurusan Sunrise Garden Kondominium v.Sunwasy City (Penang) Sdn Bhd & Ors [2023] 2 MLJ 621 (Sunrise Garden) wherein Nallini Pathmanathan FCJ held at 654 – “For the purposes of the present appeal, s 22(2A)(c) is of particular relevance. In its consideration of an application for planning permission, the State Planning Committee is under a duty to request for advice from the NPPC where the application involves ‘development affecting hill tops or hill slopes, in an area designated as environmentally sensitive in a development plan’. This amendment is highly significant in ensuring two fundamental aspects of the TCPA, that of integration between Federal and State and environmental protection. It is to be recalled, again, that one of the functions of the NPPC is to promote environmental protection and sustainable development. The TCPA’s focus on integration between Federal and State, environmental protection, and sustainable development is also clear from the explanatory statement to the bill and Hansard debates. Although statutory interpretation is exclusively within the province of the judiciary, Hansard and Parliamentary speeches may serve as an interpretive aid (Maple Amalgamated Sdn Bhd & Anor v Bank Pertanian Malaysia Bhd [2021] 6 MLJ 348; [2021] 8 CLJ 409 at para [53]). With respect to the inclusion of s 22(2A), development affecting hill tops or hill slopes are no longer merely an issue of local or state governance. It is also a federal level and national issue. The inclusion of the role of the Federal Government in town and country planning would promote coordination between the local authority, State-level authorities, and the Federal Government, thus ensuring development takes place in a well-balanced manner and accords with the sharing of responsibilities as well as the principle that the public interest precedes private interest in the use and development of land. This much was made evident by the Minister in the Hansard debates that took place on 30 July 2001 and 31 July 2001 (this argument was raised in the appellant’s submissions (encl 57), pp 140–143). It is worth summarising in brief the prominence of environmental protection in the TCPA following the passing of the Amendment Act. The fact that such amendments were introduced throughout the TCPA demonstrates the legislative intent in amending the TCPA so that the statute would play a more prominent and effective role in environmental protection. Firstly, the very creation of the NPPC and its functions including environmental protection and sustainable development. Secondly, and as highlighted earlier, the insertion of the NPPC’s role throughout the planning process and, given the NPPC’s functions, ensuring that environmental considerations are taken into account throughout. In the context of the above provisions, and the significant amendments made to the TCPA vide the creation of the NPPC, it is clear that the TCPA is aimed towards achieving integration between Federal and State as well as environmental protection. The NPPC can be seen as a buckle or link between these two objectives; as a body sitting at the top of the planning administration hierarchy, it is tasked with the responsibility of ensuring development throughout Peninsular Malaysia takes into account environmental protection and sustainable development.” Principles of law governing judicial review proceedings

The test applicable in determining the grant of leave for judicial review is settled. In Tang Kwor Ham & Ors v. Pengurusan Danaharta Nasional Bhd & Ors [2006] 5 MLJ 60; [2006] 4 AMR 89; [2006] 1 CLJ 927, Gopal Sri Ram JCA (as His Lordship then was) held at 69 – “the High Court should not go into the merits of the case at the leave stage. Its role is only to see if the application for leave is frivolous. If, for example, the applicant is a busybody, or the application is made out of time or against a person or body that is immunised from being impleaded in legal proceedings then the High Court would be justified in refusing leave in limine. So too will the court be entitled to refuse leave if it is a case where the subject matter of the review is one which by settled law (either written law or the common law) is non-justiciable, eg, proceedings in Parliament (see art 63 of the Federal Constitution).” (WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 MLJ 296 at 303). Analysis and findings

This Court is guided by the judgment in Wang Choon Yin v. Dato’ Seri Hj Mustafar bin Hj Ali, Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No. 1) dan lain-lain [2020] 5 MLJ 793, wherein Kamardin Hashim JCA held – “[14] Adalah menjadi satu prinsip yang mantap bagi sesuatu prosiding semakan kehakiman untuk mengenal pasti apakah keputusan yang dipersoalkan yang hendak diketepikan oleh pemohon dan disebutkan dengan nyata dalam permohonan untuk mendapatkan kebenaran. Jika sekiranya permohonan itu ditujukan terhadap keputusan yang tidak tepat atau terhadap pihak berkuasa yang membuat keputusan yang dipersoalkan itu tidak tepat, akan menjadikan permohonan untuk mendapatkan kebenaran sebagai tidak berkompeten. Dalam kes rayuan di hadapan kami, kami bersetuju dengan pendirian responden bahawa walaupun perayu telah menyatakan keputusan yang hendak dicabar adalah tepat namun perayu telah menamakan pihak-pihak yang tidak sepatutnya, iaitu responden pertama, responden ketiga dan responden kelima. … [30] Semakan kehakiman ialah satu proses menyemak sesuatu keputusan yang telah dibuat, dan dalam kes di hadapan kami perayu telah memohon untuk menyemak keputusan pembuangan kerja perayu dari perkhidmatan responden. Adalah tidak dapat dipertikaikan bahawa responden kelima tidak pernah terlibat dalam proses membuat keputusan pembuangan kerja perayu. Oleh itu responden kelima bukanlah satu pihak yang wajar dinamakan dalam prosiding di sini.” (Ambiga a/p Sreenevasan v. Ketua Pengarah Imigresen, Malaysia & Ors [2012] 1 MLJ 92 at para [12], Samsiah Bt Leman v. Ketua Polis Negara & Ors [2016] 7 MLJ 149 at para [25])

From a reading of the cause papers, the crux of Applicants’ allegations is that the 2nd Respondent has failed to follow the procedures for the preparation of a local plan, the conduct of public hearings and the display of the Draft Local Plan for the residents’ feedback. Their concern is that the 2nd Respondent failed to disclose the full version of the Draft Local Plan as the Environmentally Sensitive Area map was omitted.

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Briefly, this process begins with the preparation of the Draft Local Plan by the State Director. The Draft Local Plan is then submitted to the Local Planning Authority. Before a decision regarding the Draft Local Plan is made, relevant parties are given the opportunity to make representations during an inquiry conducted by an Inquiry Committee appointed for that purpose.

The Local Planning Authority may approve the Draft Local Plan, or approve it with modifications, after taking into account any objections or representations made. The Draft Local Plan is then submitted to the State Planning Committee for their approval.

Following approval by this Committee, the Draft Local Plan is submitted to the State Authority for their assent, and once such assent is granted, the Draft Local Plan shall come into force.

Nowhere in this process does the 5th Respondent and by extension the officers of the 7th Respondent play a role in supervising or directing the authorities concerned.

This Court is of the view that the Applicants’ reliance on Sunrise Garden (supra) is unfounded. The Federal Court in that case invalidated planning permission for a major hillside development, ruling that local authorities must strictly adhere to gazetted structure plans prohibiting construction on sensitive slopes. The decision emphasized that local authorities must consult the 5th Respondent for such projects and provide reasons for their decisions.

That case does not in any way establish that the 5th Respondent is directly be involved in the process for the preparation of the Draft Local Plan such that necessitated them being made a party to applications involving challenges to the Draft Local Plan. The Applicant’s interpretation effectively overextends the scope of the apex Court’s findings. Decision

This Court agrees with the AG that Enclosure 1 which is directed at the 5th and 7the Respondents amounts to a frivolous and vexatious application and therefore incompetent to that extent.

For this reason, the AG’s objection is allowed and Applicants’ application for leave against the 5th and 7th Respondent is dismissed with no order as to costs. The application against

(i) the principal physical, economic, environmental, and social characteristics; including the principal land use of that State;