SARAVANAN A/L SANGARALINGAM v Majlis Bandaraya Ipoh (A-01(A)-574-09/2024)

SARAVANAN A/L SANGARALINGAM (Identity Card No.: 770320-10-5145)

PUSSPERWALI A/P RAMASAMY (Identity Card No.: 500624-08-5040) ... APPELLANTS

YOGA INDRAN A/L A GANABATHY (Identity Card No.: 620908-08-5487) ... RESPONDENTS [In the High Court of Malaya at Ipoh Civil Suit No.: AA-25-6-06/2023

Saravanan a/l Sangaralingam (Identity Card No.: 770320-10-5145)

Pussperwali a/p Ramasamy (Identity Card No.: 500624-08-5040) ... Applicants

Majlis Bandaraya Ipoh

Yoga Indran a/I A Ganabathy (Identity Card No.: 620908-08-5487) ... Respondents CORAM: MOHAMED ZAINI BIN MAZLAN, JCA AHMAD KAMAL BIN MD. SHAHID, JCA NADZARIN BIN WOK NORDIN, JCA GROUNDS OF JUDGMENT

This is an appeal by Saravanan a/l Sangaralingam (the $ 1^{\mathrm{st}} $ Applicant) and Pussperwali a/p Ramasamy (the $ 2^{\mathrm{nd}} $ Applicant) (collectively referred to as the Applicants), who filed a Judicial Review Application (JR), for their grievance with the decision of the local authority, i.e., Majlis Bandaraya Ipoh (MBI) $ (1^{\mathrm{st}} $ Respondent) which instructing them, among others, that the height of the constructed wall in between of their house with the neighbouring house be reduced from 9 to 4 feet, vide its letter dated 22 March 2023 (the impugned decision). The Applicants' neighbour Mr. Yoga Indran a/I A Ganabathy (Mr. Yoga), who was allowed to intervene in this JR, was later named as the $ 2^{\mathrm{nd}} $ Respondent.

Upon hearing both parties during the hearing of this appeal, we were of the view that the parties could resolve this matter amicably, and thus gave time for all parties to mediate. However, we were informed that no amicable settlement could be reached. Therefore, this is now our decision.

The Applicants are the registered owners of a semi-detached house at No.21 Jalan Damai, Taman Idris 30100 Ipoh, Perak Darul Ridzuan (House No.21). The $ 2^{\mathrm{nd}} $ Respondent, Mr. Yoga, is a neighbour of the Applicants and the owner of the adjacent house at No.23 Jalan Damai, Taman Idris 30100 Ipoh, Perak (the Neighbouring House).

In or about March 2020, the Applicants carried out renovations to their house at House No. 21. The renovation works include, amongst others, the extension of the wet-kitchen area of the House (the Extension), and the increase in height of an existing interface wall between the House and the Neighbouring House (the Wall).

The Applicants did not obtain prior approval from MBI and/or their neighbour, Mr. Yoga, for this construction, even though such approval was required under the Street, Drainage and Building Act 1974 (SDBA 1974).

On 16 February 2021, MBI issued a notice to the Applicants under section 70(13)(b) of the SDBA 1974, informing the Applicants that the Extension had resulted in a deviation from the approved building plans and requiring that the House be reinstated within 30 days (the Demolition Notice). (See: Encl. 16, PDF pages 7-8). Notably, the Demolition Notice only concerned the Extension and did not raise any issue in relation to the Wall.

On 12 November 2021, Mr. Yoga commenced JR proceedings against MBI in Application No. AA-25-31-11/2021 (JR 31) in respect of the renovation works carried out by the Applicants at the House.

In JR 31, Mr. Yoga specifically took issue with the Wall. He sought a mandamus order compelling MBI to either demolish the Wall or, alternatively, if approval had been granted, to reassess its safety. Pertinently, the Applicants were not named as parties in JR 31.

MBI opposed JR 31 on the following grounds, amongst others, as set out in its affidavit in reply (AIR), affirmed by Syahrul Azrin Bin Ghazali (Syahrul) on 04 February 2022. (See: Encl. 16, PDF pages 10-12):

1 Mr. Yoga had not substantiated his allegations that the Wall posed a danger. He had not produced any expert reports in support of such allegations.

2 Mr. Yoga had not referred to the fact that MBI had issued the Demolition Notice.

3 MBI had investigated the renovation works and obtained the consent of the Public Prosecutor to charge the Applicants in relation to the said works. MBI was in the process of instituting the charges against the Applicants.

Mr. Yoga then adduced a report by Messrs JTK Consult Sdn Bhd (the JTK Report) by way of its affidavit, affirmed on 17 June 2022, to support his contention that the Wall was unsafe.

1 The JTK Report acknowledged that it was prepared purely on a visual inspection of the House.

2 The said report concluded that the renovation works in the House were purportedly poorly managed and executed, and that the said works were purportedly not in accordance with the approved building plans.

3 However, the said report did not make any conclusive findings that the Wall would pose a danger to any party. It merely found that the Wall poses a risk to the Neighbouring House because it did not comply with the general requirements for house renovation works.

MBI then challenged the JTK Report vide its AIR, affirmed by Syahrul on 29 July 2022, on the following grounds. (See: Encl. 16, PDF pages 19-20):

1 The JTK Report was not adduced at the time Mr. Yoga filed JR 31. Further, the said report does not contain any conclusive findings that the Wall would collapse as alleged by Mr. Yoga.

2MBI further contended that JR 31 was filed in abuse of process, as the dispute between Mr. Yoga and the Applicants was properly the subject of a private law claim between them and, in any event, Mr. Yoga had not joined the Applicants as parties to JR 31.

While JR 31 was pending (which will be reverted later), the following material events transpired.

On 25 March 2022, the Applicants received a "Pemberitahuan Tindakan Mahkamah/Waran Tangkap" (See: Encl. 5, PDF pages 142-144), notifying them that MBI had commenced proceedings by way of a summons against them in Case No. AA-87-149-02/2022 in the Ipoh Magistrate Court, for deviation from approved building plans under section 70(13)(b) of the SDBA 1974 (the Summons).

On 30 March 2022, the Applicants pleaded guilty to the Summons and were fined RM10,000.00, which they paid on the same day.

On 04 July 2022, MBI formally wrote to the Applicants, wherein (See: Encl. 16, PDF pages 17):

1 MBI recounted that, at the hearing of the Summons, the Applicants' counsel had informed the court that the Applicants would submit a new application for planning permission reflecting the actual state of the construction erected at House No.21 after the Summons had been disposed of.

2 MBI required that the said application be submitted for approval by 30 July 2022, failing which it would apply for a court order to demolish the parts of the construction erected without approval.

On 17 August 2022, the Applicants responded in writing to MBI, stating, amongst others, the following. (See: Encl. 16, PDF pages 21-23):

1 The Applicants urged MBI to exercise its discretion not to require the demolition of the renovation works.

2 The Applicants had engaged the services of two (2) engineering firms to conduct a safety assessment of the Wall. In that regard: a) A report prepared by SJP Consultants Sdn Bhd (SJP) concluded, amongst others, that the Wall would not pose a danger provided the recommended stiffening works were carried out (the SJP Report). (See: Encl. 16, PDF pages 25). b) The Applicants had sought a second opinion from M&R Architects Sdn Bhd (M&R), who shared the same view as SJP. This is evident in M&R's letter of 16 August 2023 (M&R's Letter) where it reaffirmed that the Wall is safe and stable, provided the structural enhancement works were executed (See: Encl. 16, PDF pages 24).

On 25 August 2022, the Applicants applied for planning permission in respect of both the Extension and the Wall. (See: Encl. 16, PDF page 60).

On 26 September 2022, MBI approved the Applicants' planning permission application (the Approval). (See: Encl. 16, PDF pages 61-63).

1 MBI has granted approval for a period of one year, ending $ 3 0^{th} $ June each year, where a renewal will be granted upon payment of RM250.

2 It is pertinent to note that the Approval was a "planning permission" within the meaning of section 22 of the Town and Country Planning Act 1976 (TCPA 1976).

On 22 March 2023, MBI made the impugned decision requiring the Applicants to reduce the height of the constructed Wall from 9 feet to 4 feet. (See: Encl.16, PDF pages 80-81).

In this regard, MBI explained that the impugned decision was made in response to a complaint from a neighbour concerning the Wall, where the complaint took the form of JR 31. This is stated in MBI's letters dated 22 March 2023 (see: Encl. 16, PDF page 80, paragraph 3) and 30 May 2023 (see: Encl. 16, PDF 88, paragraph 4) to the Applicants.

The impugned decision dated 22 March 2023, which is the subject matter of dispute in this appeal, is reproduced as follows: - "Tuan/Puan, PEMBAHARUAN PERMIT SEMENTARA BAGI (FI TAHUNAN) CADANGAN PINDAAN DAN TAMBAHAN KE ATAS SATU UNIT RUMAH BERKEMBAR DUA TINGKAT SEDIADA DI ATAS LOT 7054N, NO. 21, JALAN DAMAI, TAMAN IDRIS, IPOH, PERAK DARUL RIDZUAN. - Notis arahan - Dengan segala hormatnya perkara di atas adalah dirujuk.

Seperti pihak tuan/puan sedia maklum, permohonan-permohonan bagi struktur binaan yang telah dikeluarkan permit sementara perlu diperbaharui pada 30 Jun setiap tahun. Sehubungan dengan itu, bagi tujuan pembaharuan permit sementara tersebut pihak tuan/puan adalah dikehendaki menjelaskan bayaran Fi Tahunan berjumlah RM250.00 dan mengemukakan dokumen seperti berikut:- i) Surat permohonan pembaharuan Permit Sementara (Fi Tahunan) ii) Cukai Taksiran terkini iii) Cukai Tanah terkini

Selain itu, untuk makluman pihak tuan/puan, pihak MBI telah menerima aduan kacau ganggu daripada pihak jiran tuan/puan berkaitan dengan struktur binaan yang merupakan dinding perantara di antara rumah berkembar pihak tuan/puan yang telah dibina setinggi 9' melepasi ketinggian bumbung rumah tuan/puan. Aduan tersebut telah dizahirkan di dalam prosiding semakan kehakiman Mahkamah Tinggi Ipoh No:- AA-25-31-11/2021.

Pihak MBI membawa perhatian tuan/puan kepada perkara 4.15 di dalam Garis Panduan Pemutihan Pengubahsuaian Bangunan dan Binaan Tambahan Bagi Unit Kediaman Dalam Kawasan Pentadbiran Majlis Bandaraya Ipoh: "Sekiranya pembinaan didapati menimbulkan kacauganggu dan membahayakan orang awam, MBI boleh menarik balik kelulusan sementara itu dengan serta-merta dan pemilik hendaklah merobohkan binaan itu dalam satu tempoh notis yang ditetapkan oleh MBI".

Sehubungan dengan itu, pihak tuan/puan dengan ini diberi Notis untuk menurunkan ketinggian bangunan daripada 9' kepada 4' tinggi selaras dengan syarat di dalam Rancangan Tempatan Ipoh dan mengemukakan cadangan pelan bangunan yang telah dipinda.

Kesemua dokumen dan bayaran perlu diserahkan kepada pihak MBI sebelum 30 Jun 2023 bagi membolehkan tindakan pembaharuan permit sementara tersebut dapat dijalankan. Kegagalan pihak tuan memperbaharui permit sementara tersebut, maka pihak majlis akan beranggapan bahawa pihak tuan tidak lagi berminat untuk meneruskan permit tersebut dan akan terbatal dengan sendirinya. Sekiranya struktur berkenaan masih dikekalkan, satu tindakan penguatkuasaan mengikut peruntukan undang-undang di bawah Akta Jalan, Parit dan Bangunan 1974 (Akta 133) akan dilaksanakan. Sekian dimaklumkan, terima kasih. Saya yang menjalankan amanah, t.t. (Ts. MUHAMMAD SYAHRIL BIN SAPIRAN) Pengarah Kawalan Pembangunan Bandaraya b.p: Datuk Bandar"

The Applicants disputed the impugned decision in their letter dated 22 May 2023. (See: Encl.16, PDF pages 82-87), and sought that MBI revoke the decision and uphold the Approval based on, amongst others, the following:

1 According to the SJP Report, the Wall was only between 5 feet and 6 feet high.

2 The complaint was not made in good faith, given the absence of any evidence to support the allegation that the Wall caused nuisance or posed a danger to the public under the Garis Panduan. This fact was acknowledged by MBI itself in its affidavits filed in opposition to JR 31. The impugned decision is contrary to MBI's position in JR 31, where the statements in those affidavits constituted sworn evidence.

3 MBI had reviewed the SJP Report and any other relevant documents when granting the Approval. There was no change in circumstances from the date of Approval to the date of the impugned decision. Further, section 72 of the SDBA 1974 does not confer any authority on MBI to revoke the Approval.

4 The impugned decision discriminated against the Applicants, as drone footage revealed that the majority of the houses in the vicinity had carried out renovation works without obtaining MBI's prior approval, yet the Applicants were the only parties to be met with the impugned decision.

MBI then shifted its position by its response letter dated 30 May 2023. (See: Encl.16, PDF page 88-89), where it now sought to assert that, in addition to the Garis Panduan, it could revoke the Approval where a construction failed to comply with the standards stipulated under the Rancangan Tempatan Bandaraya Ipoh (Rancangan) and any other applicable laws.

Subsequently, on 12 June 2023, a Consent Order was recorded between MBI and Mr. Yoga in JR 31, wherein MBI agreed to demolish the Wall within 14 days from 30 June 2023 should the Applicants fail to comply with the impugned decision (the Consent Order) (See: Encl. 16, PDF 106-107).

The Consent Order read as follows: - "a) BAHAWASANYA menerusi satu surat bertarikh 22.03.2023, Responden telah memberi notis kepada pemilik premis No.21 ... tersebut untuk menurunkan ketinggian bangunan daripada 9' (kaki) kepada 4' (kaki) tinggi pada /atau sebelum 30.06.2023 selaras dengan syarat di dalam Rancangan Tempatan Ipoh... b) ADALAH DIPERSETUJUI BAHAWA, Responden akan merobohkan dan/atau merendahkan dinding tambahan kepada dinding perantaraan yang diubahsuai di premis No.21 daripada 9' kepada 4' tinggi tertakluk kepada peruntukan Seksyen 72 (5) Akta Jalan, Parit Dan Bangunan 1974 dalam tempoh empat belas (14) hari dari 30.06.2023 sekiranya pihak Pemilik Premis No.21 tersebut gagal dan/atau abai dan/atau cuai dan/atau enggan untuk mengikuti arahan dalam Notis yang tertera pada surat Responden bertarikh 22.03.2023 tersebut dimana semua kos robohan tersebut ditanggung oleh pemilik premis No 21..."

The Consent Order and the impugned decision led to the JR by the Applicants.

Aggrieved with the impugned decision, the Applicants then filed the present JR, contending that the MBI's decision to impose the height restriction was unlawful, arbitrary, and inconsistent with the temporary approval previously granted, and that the Consent Order should not bind them as they were not parties to JR 31. Findings of the learned High Court Judge

The learned High Court Judge (HCJ) dismissed the Applicants' JR and upheld the MBI's decision and the Consent Order. Having so decided, the learned HCJ found:

1 MBI had acted lawfully in requiring the interface wall to comply with the four-foot height limit prescribed by the Ipoh City Local Plan. MBI was exercising its statutory duties under sections 70 and 72 of the SDBA 1974 to ensure compliance with approved plans, public safety, and planning standards, and it was entitled to act upon public complaints made by a neighbouring landowner.

2 The temporary approval granted to the Applicants did not confer any permanent right to maintain the wall at its existing height. The approval was expressly conditional and subject to compliance with local planning rules. As such, it did not create any vested right or bar the MBI from later enforcing statutory requirements.

3 The Applicants' claim of legitimate expectation was rejected as the conditional or temporary approval could not give rise to a legitimate expectation that contradicted statutory planning limits or public safety considerations. The Applicants could not reasonably expect a structure that exceeded prescribed height limits to be permanently sanctioned.

4 The Consent Order recorded in JR 31 was valid and enforceable. Although the Applicants were not parties to that proceeding, they had knowledge of it and chose not to intervene. The present JR was therefore an impermissible collateral attack on a final court-approved settlement, which is contrary to the principle of judicial finality.

5 MBI had acted within its statutory powers, exercised its discretion reasonably and proportionately, and complied with procedural fairness. The enforcement of the height restriction and the Consent Order served the public interest in safety, orderly development, and regulatory compliance.

Accordingly, the JR was dismissed, and costs of RM 2,000.00 was awarded to the MBI and RM 3,000.00 to Mr. Yoga. Hence, the present appeal.

In this appeal, the Applicants, as the appellants, raised the following issues:

1 The learned HCJ was plainly wrong in finding that MBI had a basis in law, be it primary or subsidiary legislation, to make the impugned decision. The Garis Panduan, which formed the basis of the impugned decision, is merely an administrative guideline with no force of law.

2 The impugned decision was unreasonable, irrational, and/or otherwise disproportionate. In view of MBI's unequivocal positions taken in JR 31 and the granting of the approval, the impugned decision is one that no reasonable decision maker would have made in the circumstances.

3 An administrative body owes a duty to give reasons for its decisions, pursuant to public law principles and the principle of natural justice.

4 The impugned decision had violated the Applicants' legitimate expectation that the Wall could be lawfully maintained at its height of 5 to 6 feet.

5 The JR was not a collateral attack on the Consent Order. Our Decision Whether the decision of MBI was tainted with illegality, irrationality, and/or unreasonableness in making the Impugned decision

We find that the Garis Panduan, which formed the basis of the impugned decision, was issued by MBI to provide guidelines on the regularization of building alterations and structures for residential units.

This can be gleaned from the Garis Panduan, which is reproduced as follows: - "1.0 TUJUAN Garis Panduan ini bertujuan memberi panduan kepada pelaksanaan program pemutihan pengubahsuaian bangunan dan binaan tambahan bagi unit kediaman dalam Kawasan pentadbiran Majlis Bandaraya Ipoh (MBI) bagi binaan: i. Tanpa kelulusan (boleh diluluskan sekiranya kemukakan permohonan pelan), ii. Tidak selaras dengan kelulusan, iii. Tidak boleh diluluskan (anjakan bangunan tidak mencukupi)." (Emphasis added) (See: Encl. 6, PDF page 54)

Having perused the evidence produced before the court, we are of the view that the Garis Panduan, is merely an administrative guideline with no force of law.

We find that the Garis Panduan was not enacted pursuant to any statutory provision. Even though paragraph 3 of the Garis Panduan made references to the SDBA 1974, TCPA 1976, and Local Government Act (LGA) 1976, nowhere in the Garis Panduan does it mention that it has been formulated pursuant to any enabling provision of the said Acts.

We are of the view that for the Garis Panduan to have the force of law, it must be enacted pursuant to a power given by law. We find support for our view by referring to the case of Dr HK Fong Brainbuilder Pte Ltd v SG-Maths Sdn Bhd & Ors [2021] 1 MLJ 549; [2020] 6 MLRA 588; [2021] 1 CLJ 155, where the Court of Appeal held as follows: - [27] We observe that there is a common denominator in both cases highlighted to us by the plaintiff ie there is an enabling provision allowing the issuance of the 'guidelines' in question. In Edwin Thomas (supra), the High Court held Practice Note No 1 of 1987, a set of guidelines that have the force of law because it was issued under s 28 of the Industrial Relations Act 1967. On the other hand, in F&N Beverages Marketing (supra), the Guidelines for Carrying on Offshore Leasing Business in Labuan 2003 was held by the High Court to be made by the Lembaga Perkhidmatan Kewangan Labuan (respondent) pursuant to the power conferred on it under s 4A of the Labuan Financial Services Authority Act 1996. [28] Based on our research, the Franchise (Forms and Fees) Regulations (PU(A) 422 of 1999) is the only regulation made by the Minister pursuant to s 60 of the FA 1998. The other two regulations are:

Franchise (Qualifications of a Franchise Broker) Regulations 1999 (PU(A)423 of 1999) made by the Minister pursuant to s 14(2) of the FA 1998; and

Franchise (Compounding of Offences) Regulations 1999 (PU(A)424 of 1999) made by the Minister pursuant to s 41 of the FA 1998. In light of the above, with respect we make this observation that the submission on behalf of the plaintiff that the Buku Panduan was issued by the Minister of Domestic Trade and Consumer Affairs pursuant to s 60 of the FA 1998 is misconceived. [29] The question of taking any judicial notice does not arise because in light of the existence of the three aforementioned Regulations, it is clear that the Buku Panduan has not been issued pursuant to any enabling provision under the FA 1998 for it to have the force law. We therefore find it unnecessary to refer to the Buku Panduan." (Emphasis added) (See also: Majlis Perbandaran Subang Jaya v Lembaga Rayuan Negeri Selangor v & Anor [2023] 9 CLJ 765)

Therefore, we are of the considered view that in the absence of statutory authority, i.e., the power from which the Garis Panduan was made, MBI has acted unlawfully by issuing the impugned decision based on Garis Panduan, which is merely an administrative guideline with no force of law.

Given the above, we find that notwithstanding that the Garis Panduan is merely an administrative guideline with no force of law, we are of the view that before MBI may exercise its discretion to revoke the Approval, there are two (2) conjunctive consideration as mentioned in paragraph 4.15 of the Garis Panduan which must be satisfied, namely the elements of nuisance and danger to the public.

Based on paragraph 4.15 of the Garis Panduan, it is clear that MBI's discretion to revoke the Approval may only be exercised where a structure has given rise to "kacau ganggu dan membahayakan orang awam," i.e., nuisance and danger to the public.

Upon perusal of the evidence presented before the court, we find that there was no evidence to show that the structure and/or the Wall poses a nuisance or danger to the public based on the following facts:-

1 MBI through the AIR, affirmed by Syahrul on 4 February 2022 and 29 July 2022, respectively, had opposed JR 31 on the following grounds: - a. That Mr. Yoga had not produced any evidence to substantiate his allegation that the Wall posed a nuisance or danger to the public. b. MBI had challenged the JTK Report adduced by Mr. Yoga, on the basis that the report does not contain any conclusive findings that the Wall would collapse.

2 The expert reports adduced by the Applicants had conclusively confirmed that the Wall is structurally safe for use. This can be seen from the following: - a. A report prepared by SJP concluded, amongst others, that the Wall would not pose a danger provided the recommended stiffening works were carried out; and b. M&R's letter reaffirmed that the Wall is safe and stable, provided that the structural enhancement works are executed. c. Structural Audit Report prepared by Ir. Ong Ghee Poh (See: Encl.16, PDF pages 138-152) concluded that there is no evidence whatsoever that the renovation works have any negative bearing on the attached neighbour.

3 The mere lodging of a complaint by Mr. Yoga does not, in and of itself, establish that the Wall caused a nuisance or posed any danger to the public. At all material times, there was no final judicial determination as to whether the Wall had given rise to a nuisance or danger.

It is to be noted that the impugned decision was purportedly made pursuant to paragraph 4.15 of the Garis Panduan (Encl. 6, PDF 170). MBI did not rely on any other legal basis, be it a statutory provision or a breach of any conditions imposed by the Approval, for the impugned decision.

Given the absence of nuisance and danger to the public, and the lack of evidence to substantiate the same, we are of the view that MBI did not have the basis to revoke the Approval under paragraph 4.15 of the Garis Panduan. MBI had thus acted beyond the powers conferred upon it under the Garis Panduan in making the impugned decision.

We recognised that local authorities, including MBI, possess the statutory power to inspect works, issue a stop-work order, demand the demolition of unauthorised structures within their administrative functions, subject to legal limits, and prosecute offenders. However, in the instant case, we find that MBI had no legal basis to exercise its power under paragraph 4.15 of the Garis Panduan as the mandatory requirements, i.e., nuisance and danger to the public, were not satisfied.

It is instructive to refer to the Court of Appeal case of Wan Senik bin Wan Omar v Majlis Perbandaran Selayang [2017] 6 MLJ 229; [2017] MLRAU 302; [2017] 10 CLJ 102; [2017] 5 AMR 574, where the facts have some similarities with the present case. a. In Wan Senik (supra), the Applicant carried out house renovations without approval from the Respondent (the relevant local authority). The Respondent issued a notice under section 70(11) of the SDBA 1974 offering a compound for the authorized renovations, and another notice under section 72(1) of the SDBA 1974 requiring the Applicant to demolish and vacate the illegally erected structure. b. The Applicant subsequently paid a compound of RM800.00. The Respondent had also agreed to approve the Applicant's renovation application and to increase the house's assessment, taking into account the authorized renovations. c. The Applicant's neighbour then lodged a complaint and threatened to pursue the matter if the Respondent did not demolish the illegally erected structure. The Respondent then instructed the Applicant to vacate and demolish the structure. d. The Applicant filed a JR challenging the Respondent's decision on grounds of illegality, amongst others. e. The Court of Appeal, in overturning the High Court decision, held as follows:- [25] Granted that the respondent was indeed so clothed with the authority, its exercise must be justified by the factual circumstances before such power may be invoked. In the context of this appeal, the appellant was offered a compound which he had paid. If he had not paid the compound, he would have been charged under s 70(11) of Akta JPB 1974 and on conviction, the court shall on application by the respondent issue an order to demolish the illegal structure. [26] We were of the view that by opting to offer to compound the offence, the respondent had decided not to pursue the matter of demolition of the illegal structure. Had the respondent not offered the compound to the appellant, the invocation of s 72(1) would still be available at its disposal. But, by offering the negotiated compound which was accepted and was duly paid by the appellant, the option to invoke s 72(1) of Akta JPB 1974 was no longer available to the respondent to order the appellant to demolish the illegally erected structure. [27] Then there was the fact that the original amount of assessment that was levied against the appellant had included or taken into account the illegal structure in its calculation. Why should the illegal structure be included in the assessment rate that was levied against the appellant? By taking the illegally erected structure into account in the assessment rate, the irresistible inference must be that the respondent must have accepted the illegal structure has been approved. Learned counsel for the respondent was not able to give any justification as to why that was so when we addressed that question for his response. In the circumstances, it was only reasonable for the appellant to say that the respondent was estopped from further complaining about the illegal structure and requiring it to be demolished when the respondent had acted upon it for its own benefit in raising the assessment rate that was payable by the appellant." (emphasis added)

Coming back to the facts in the present case: a. The Applicants had pleaded guilty to the Summons issued under section 70(13)(b) of the SDBA 1974 for deviation from approved building plans, and paid a fine of RM10,000.00. b. The Applicants had also applied for planning permission in respect of both the constructed Extension and the Wall and had obtained the Approval. c. The Approval was granted for the Wall, which had been constructed at a height of 5 to 6 feet. By granting the Approval, the inference must be that MBI had accepted and approved the Wall at the existing height. In reliance on Wan Senik (supra), MBI is estopped from further requiring the Wall to be reduced to a height of 4 feet. d. There was no evidence of any nuisance, risk, or danger posed by the Wall. MBI itself accepted this position in JR 31, and when granting the Approval.

With respect, we find that Mr. Yoga's reliance on the case of Mohd Suhaily Tambi v Datuk Bandar Kuala Lumpur [2024] 1 MLRH 694 is misconceived. In that case, the building concerned had deviated from the approved building plan. No subsequent approval was given for the deviation. However, in the present case, MBI had granted the Approval for the Wall as constructed (Encl. 16, PDF page 61). Therefore, the present case is distinguishable from Mohd Suhaily (supra).

In view of MBI's unequivocal positions taken in JR 31 and the granting of the Approval, we are of the view that the impugned decision is one that no reasonable decision maker would have made in the circumstances.

Given the aforesaid reasons above, this court is of the view that the learned HCJ failed to appreciate that MBI neglected to take into account the following matters when making the impugned decision:

1 When applying for planning permission, the Applicants had provided the SJP Report, M&R's Letter, and other relevant supporting documentation to MBI, demonstrating that the Wall, which had been in place for three (3) years, did not pose any nuisance, risk, or danger.

2 MBI ought to have carried out its own assessment of the Wall and taken into consideration all relevant matters before granting the Approval.

3 The Wall, measuring between 5 and 6 feet in height, had already been constructed at the time the Approval was granted. The Approval was thus for a wall exceeding 4 feet in height.

4 MBI had previously taken the position on oath in JR 31 that the Wall does not pose any nuisance, risk, or danger.

5 Mr. Yoga failed to adduce any evidence to substantiate his contention that the Wall posed any nuisance, risk, or danger, a position which MBI itself had rejected in JR 31.

Had the learned HCJ kept the above facts at the forefront of his judicial analysis, then it is very likely that he might have come to a different conclusion.

It is well established that an administrative decision is amenable to JR on the ground of legitimate expectation where a public authority, acting within the scope of its powers, has made a representation or promise to an individual which had given rise to a legitimate expectation.

The Court of Appeal in the case of Zakiah Ishak v. Majlis Daerah Hulu Selangor [2005] 2 MLRA 326; [2005] 6 MLJ 517; [2005] 4 CLJ 77 held as follows: - [16] "Secondly it was contended on her behalf that the termination was in breach of her legitimate expectation that she could continue in her employment for the said period. In law for legitimate expectation to arise there must be evidence of a promise or undertaking made by the Respondent to that effect. We find no such evidence before the court. On that premise we find that her claim for breach of legitimate expectation is wholly unsustainable." (emphasis added)

In the case of YKK (Malaysia) Sdn Bhd v. Pengarah Tanah dan Galian Johor [2021] 5 MLRA 476; [2021] 6 MLJ 496; [2021] 8 CLJ 179, the Federal Court held as follows: - [95] The courts will generally grant judicial review of an administrative decision premised on legitimate expectation where a public authority has made a representation or promise to the individual within its powers. In other words, the representation and promise must be within the law. In addition, the individual has to show that the representation was a clear and an unambiguous promise, an established practice or a public announcement." (emphasis added)

In the instant case, we find that the impugned decision had violated the Applicants' legitimate expectation that the Wall could be lawfully maintained at its height of 5 to 6 feet.

From the evidence presented before this court, we are of the view that the learned HCJ failed to appreciate that MBI had provided a clear and unambiguous representation that the Wall could be lawfully maintained at its height through the following:

1 The Approval; and

2 The affirmative statements made by MBI in JR 31 on oath in AIR affirmed by Syahrul.

The Applicants had maintained the Wall at its existing height in reliance on the aforesaid representations. However, when MBI subsequently retracted those representations, as reflected in the impugned decision, the Applicants were adversely affected. Whether the JR Application constituted a collateral attack on the Consent Order

The Respondents contended that the Applicants' JR Application constituted a collateral attack on the Consent Order entered between MBI and Mr. Yoga in JR 31.

MBI contended in its submission that the Applicants are said to have acquiesced in the Consent Order by reason of their failure to intervene in JR 31.

Mr. Yoga, on the other hand, contended in its submission that the impugned decision is "no longer a stand-alone notice", but a part of the Consent Order.

Having perused the evidence produced before the court, we are of the view that the JR was not a challenge against the Consent Order based on the following reasons: -

1 The subject matter of the JR (and by extension, the present appeal) concerns the Applicants' challenge against the impugned decision, not the Consent Order.

2 It is well-established that JR concerns the decision-making process of an administrative body.

3 The impugned decision was made prior to and independent of the Consent Order. The impugned decision was made by MBI on 22 March 2023, which was before the Consent Order was entered into by MBI and Mr. Yoga on 12 June 2023.

4 Therefore, there was no utility in the Applicants applying to intervene in JR 31 to raise arguments on the impugned decision.

5 A Consent Order constitutes a contract between the parties to that order. Therefore, the Consent Order does not in any way bind the Applicants who were non-parties to JR 31. In Tan Geok Lan v La Kuan [2004] 2 CLJ 301; [2004] 1 MLRA 165; [2004] 3 MLJ 465; [2004] 3 AMR 177, the Federal Court held: [9] (1) On the first issue, which is related to question (1), a consent judgment or order is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of the court, and its force and effect derives from the contract between the parties leading to, or evidenced by, or incorporated in, the consent judgment or order. A consent order must be give its full contractual effect, even if it relates to an interlocutory step in the action (see para. 390 @ p. 286, Halbury's Laws of England, 4th edn vol. 37). We gather from this proposition that (i) the agreement on the terms reached between the parties at the interlocutory stage of an action is a contract between the parties and (ii) the consent judgment or order arising out of that contract is also a contract between the parties except that the letter is superadded with the command of the court. In short, there are two contracts, one, before the court makes the order and two, after the order is made. After the order is made the first contract merges into the second contract. ..." (emphasis added)

6 A Consent Order is also not a final judicial determination on the merits of a dispute. It is merely a contractual arrangement between the parties consenting to that order. The Court of Appeal in Lee Lim Huat v Yusof Khan bin Ghows Khan [1997] 2 MLJ 472; [1997] 1 MLRA 244; [1997] 3 CLJ 197; [1997] 3 AMR 2401, held as follows: - [28] In the present instance, we are not dealing with a judgment of the court pronounced on merits. Here, the parties entered into a consent judgment. A consent judgment is in truth an agreement reached between the parties to an action which the court records as an order. As in the case of any other agreement, the primary function of a court is to ascertain the true intention of the parties." (emphasis added)

For the reasons given, we are of the considered view that the learned HCJ were plainly wrong in finding that the JR constituted a collateral attack on the Consent Order.

Based on the reasons above, we find that the learned HCJ erred in dismissing the Applicants' JR against the Respondents.

We therefore unanimously allow the appeal and set aside the decision of the High Court dated 22 August 2024. We also order the costs of RM20,000.00 to be paid by each Respondent to the Applicants, subject to allocator. Dated: 18 March 2026 Ahmad Kamal Bin Md Shahid Judge Court of Appeal Malaysia Counsel appearing: For the Applicants/Appellants: Dato' Malik Imtiaz Sarwar (together with Mr. Foo Joon Liang, Mr. Jon Wee Hong Xin, and Ms. Joey Tan Juan Xing) [Messrs Gan Partnership] For the 1st Respondent:Mr. Danial Rahman Bin Yang Razali(together with Mr. Jeyaramm A. Rajan[Messrs Maxwell Kenion Cowdy & Jones]For the 2nd Respondent:Miss Sheanna Shanta A/P Kenneth Velu,together with Miss Dhiviya A/P Anbananthan)[Messrs Sheanna Velu]