Ong Hock Tek v Datuk Bandar Kuala Lumpur (WA-25-222-05/2024)

For ease of reference, I reproduced the said application (L.1) as follows:

That leave be granted to the Applicant pursuant to Order 53 Rule 3 of the Rules of Court 2012 to commence judicial review proceedings 75 for: - An order of Certiorari to quash the R1’s decision to grant a purported development order/approval for the following proposed development on Lot PT 9419 (later alienated as PT 50106), Mukim Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur (the “Impugned Decision”): 80 ‘CADANGAN PEMBANGUNAN 5 BLOK PANGSAPURI 32 TINGKAT DAN 34 TINGKAT DAN TINGKAT BAWAH ARAS JALAN UNTUK TEMPAT LETAK KERETA YANG MENGANDUNGI: A. FASA 1 85 3 BLOK PANGSAPURI (620 UNIT) 32 TINGKAT TERMASUK 3 TINGKAT PODIUM DAN 6 TINGKAT BAWAH ARAS JALAN UNTUK TEMPAT LETAK KERETA BESERTA 1 UNIT TNB, BLOK A: 214 UNIT (29 TINGKAT TERMASUK 2 TINGKAT RUANG 90 S/N YijijqHnkqDXbWM7mn/Dg BLOK B: 214 UNIT (29 TINGKAT TERMASUK 2 TINGKAT RUANG BLOK C: 192 UNIT (30 TINGKAT TERMASUK 2 TINGKAT RUANG 95 B. FASA 2 2 BLOK PANGSAPURI (428 UNIT) 34 TINGKAT TERMASUK 5 TINGKAT PODIUM DAN 2 TINGKAT BAWAH ARAS JALAN UNTUK TEMPAT LETAK KERETA BESERTA 1 UNIT TNB. BLOK D: 241 UNIT (29 TINGKAT TERMASUK 2 TINGKAT RUANG 100 BLOK E: 214 UNIT (29 TINGKAT TERMASUK 2 TINGKAT RUANG DIATAS LOT PT 9419, MUKIM KUALA LUMPUR UNTUK TETUAN

An order for the Impugned Decision and all other processes relating to the same be stayed pending the full and final disposal of this judicial review application.

That the Applicant be permitted to file further affidavits as the Applicant considers necessary for the substantive judicial review 110 proceedings herein.

Costs of and incidental to this application to be costs in the cause; and 5. Any further and/or other order that this Honourable Court deems fit and/or otherwise appropriate.” 115 [3] The application before this court today:

Pertains only to paragraph 2 (highlighted above), where the applicant is seeking an order to stay the Impugned Decision and all related processes pending the full and final disposal of this 120 judicial review application.

It is to be noted that this court had granted an Interim Stay Order until 30.07.2024, pending the disposal of this JR application.

Both DBKL and Kaisar Maxim, contested the stay application (L1), 125 arguing that the application has no merits and should be dismissed with costs. [4] I heard this stay application on 17.06.2025. After reviewing the cause papers filed, the respective written submissions of the parties, and 130 hearing both counsels, I find that this application has merit and is allowed with costs in the cause. S/N YijijqHnkqDXbWM7mn/Dg [5] Dissatisfied with the decision:

R2: Kaiser Maxim filed a notice of appeal on 18.06.2025.

R1: DBKL filed a notice of appeal on 20.06.2025. 135 Since both appeals concerned the same decision, I will only prepare a single ground of judgment. My reasons are as follows: BRIEF FACTS [6] The brief facts are as follows: 140 6.1 The Applicant is the registered proprietor of a piece of land known as Lot 8349, Mukim Kuala Lumpur, which is located at No. 2A, Jalan 2/109, Off Jalan Desa Utama, Taman Desa, 58100 Kuala Lumpur, and an adjacent land adjoining the impugned land, located directly above the slopes of the latter.

6.2 DBKL (R1) granted a development order and/or has given approval to Kaisar Maxim (R2) for a proposed development (the "Impugned Decision") on Lot PT 9419 (later alienated as PT 50106), Mukim Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur.

6.3 Before R2 commences earth works on the impugned land in October 2023 for the proposed development, its surveyor with the agreement of the applicant (29.10.2021) and other neighbouring property owners, carried out a dilapidation survey of their properties to ascertained the 155 properties current condition, in focusing on identifying and documenting any existing structural damage, wear and tear or defects that could be affected or aggravated by the coming earth works that may concern disputes or claims relating to damage and/or repairs of those properties.

6.4 It is alleged by the Applicant that:

When earthworks were undertaken, no adequate protection was provided to the slopes on the impugned land.

This led to soil erosion that affected the adjoining properties, 165 particularly during heavy rain conditions.

This further escalated the water overflow into Jalan Bukit Desa.

This was followed by piling work in April 2024 that continues.

6.5 Before this proposed development, the impugned land has always 170 been known to the public as a TNB reserve land for the use of power lines and an overhead electricity transmission tower, which was suddenly, without notice to the surrounding citizens, alienated to R2 for the proposed development. 175 6.6 The Applicant further argued that:

The current use concerned a supposed infringement by R1’s of the Kuala Lumpur Structure Plan 2020 (that was gazetted on 04.11.2004).

It is a master plan of planning policies for the entire region of 180 Kuala Lumpur that includes proposals for land development from 2004 to 2024.

It formulates the proposals concerning developments and categories of land use in the region of Kuala Lumpur. 185 6.7 This supposed infringement by R1 concerning this proposed development on a reserve land classified for the use of power lines and overhead power transmission lines needs to be thoroughly canvassed and ventilated at trial. 190 S/N YijijqHnkqDXbWM7mn/Dg

6.8 R2 was allowed to intervene and be added as a respondent by the Court on 04.09.2024 since any decision arrived at would impact its position concerning the proposed development. SUBMISSION BY THE PARTIES 195 I have duly considered, examined, and observed the parties' arguments, in a nutshell are as follows: [7]

SUBMISSION BY THE APPLICANT 1 The Applicant owns land adjacent to the subject land and has lived 200 there since 2006. The land is directly above the slopes of the impugned land, which are undergoing earthworks by R2:

The development works have caused soil erosion, flooding, structural damage, and noise pollution, affecting his property and surrounding residents.

The Applicant highlights irreparable harm to residents, environmental risks, and the perpetuation of an illegal decision as grounds for granting a stay.

R2 allegedly failed to adhere to conditions for construction, including slope protection, noise limits, and obtaining consent 210 from neighbouring landowners.

The applicant contends that the harm to residents outweighs R2's speculative and unsubstantiated claims of financial loss and requests the Court to grant a stay of the development order to prevent further harm and uphold the statutory development 215 plans.

A stay order in judicial review proceedings does not require an undertaking for damages. 220 S/N YijijqHnkqDXbWM7mn/Dg

7.2

Proposed to construct five blocks of apartments on the impugned land classified under the Kuala Lumpur Structure Plan 2020 (KLSP 2020) and Kuala Lumpur City Plan 2020 (KLCP 2020) as reserve land for power lines and electricity transmission. It was 225 argued that the main goals of the KLSP 2020 are:

To create a world-class living environment in Kuala Lumpur with good quality housing, adequate, accessible and high-quality facilities and a healthy, safe and lively environment.

To create an efficient and equitable city structure in Kuala 230 Lumpur, whereby development must be balanced in a way that the overall configuration of land use is optimised without compromising societal needs or adversely affecting the existing natural and built environment.

To enhance the city living environment of Kuala Lumpur, 235 which is liveable, clean, healthy and safe, which caters to the needs of all; and

A balance must be struck between physical, economic, social and environmental development. 240

The Applicant alleged:

That the development order contravenes these statutory plans.

R1's decision to grant the development order is illegal as it contravenes the statutory development plans, which require 245 "slavish compliance" under Section 22 of the Federal Territory (Planning) Act 1982 (FTPA).

The Federal Court’s determination in Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors and Other Appeals [2023] CLJ JT (9), FC that, amongst other 250 things, ruled that:

Planning authorities must adhere to legally binding structure plans when making development orders.

(ii) There is a duty on administrative bodies to provide adequate reasons for their decisions when requested.

(iii) It reinforces the importance of transparency and accountability in the decision-making processes of administrative bodies, particularly in matters of planning and development.

(iv) The decision highlights the need for a more 260 comprehensive framework for community participation in development planning.

7.3 The Applicant and affected residents protested:

Against the proposed development since 2017, raising concerns 265 about its impact on traffic, noise, property value, and the environment.

However, despite repeated requests, the Respondents failed to provide the Applicant with relevant documents, including the development order and layout plans.

The Respondents actively concealed relevant information.

7.4 The applicant highlights exceptional circumstances warranting a stay, including:

The perpetuation of an illegal decision.

Irreparable harm to the applicant and surrounding residents due to environmental and structural damage.

Non-compliance by R2 with conditions imposed by R1 for the earthworks. 280 7.5 The Applicant argued that the balance of convenience favours granting a stay:

R2 has not substantiated its claims of financial loss, while the applicant has provided evidence of irreparable harm, such as S/N YijijqHnkqDXbWM7mn/Dg photographs, videos, and expert reports, substantiating claims of 285 soil erosion, flooding, structural damage, and noise pollution caused by the development works.

Expert reports confirm the inadequacy of slope protection measures and the adverse impact of noise levels on surrounding residents. Letters of support from residents of Taman Desa 290 further validate the concerns that have been raised.

7.6 R2’s claim that the Applicant’s expert reports are inaccurate is refuted by evidence of proper methodology and expertise by the Applicant. R2’s contention of financial loss is dismissed as bare averments 295 unsupported by contemporaneous evidence.

7 The Applicant seeks a stay of the impugned decision pending the substantive determination of L1 to prevent further harm and ensure compliance with statutory development plans. The submission 300 emphasises the irreparable harm to the Applicant and surrounding residents, the illegality of the decision, and the lack of substantiated prejudice to R2. [8]

1 Briefly:

Argues that the Applicant failed to demonstrate special circumstances warranting a stay in seeking to stay the proposed development, citing potential damage to surrounding areas, worsening floods, soil erosion, and nuisance to residents.

The balance of equity and convenience favours the developer (R2).

8.2 R1 further argued that:

The Applicant's prior knowledge of the development in 2017 and 315 his failure to act promptly, undermining his claims and prays that the stay application is dismissed with costs. R1 hhighlights multiple occasions since 2017 when the applicant could have filed the JR Application but failed to act promptly.

The Applicant, however, claimed that the earliest confirmation of 320 the development order was received on 06.05.2024. [9]

SUBMISSION BY KAISAR MAXIM (R2) 1

There are no special circumstances established by the applicant 325 to warrant a stay order on the impugned development order.

Unless and until the Court declares the said development order illegal in contravention of the KLSP 2020 and KLCP 2020, the impugned development order remains valid and effectual.

The mere presence of illegality cannot constitute special 330 circumstances.

9.2 R2 had:

Taken steps to mitigate flooding onto Jalan Bukit Desa caused by heavy rainfall. Silt traps have been built on the impugned land 335 approved by DBKL.

There is no evidence of adverse effect on the structural integrity and stability of slopes on the land.

9.3 The balance of convenience favours denying the stay. At the hearing 340 before the Court on 04.09.2024, R2 had given its undertaking as to damages that may arise to the Applicant’s property from the construction works. There has been no material change in circumstances since then. S/N YijijqHnkqDXbWM7mn/Dg THE LAW 345 [10] The law on stay:

10.1 Kosma Palm Oil Mill Sdn Bhd V Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257, where the Federal Court ruled: “(3) The onus is on the applicants to demonstrate the existence of special circumstances to justify the grant of a stay of execution. 350 The reasons must relate to the enforcement of the judgment. They must be deposed in the affidavit filed in support of the application. …Furthermore, the applicants had not put forward reasons that were related to the enforcement of the judgement; instead, they 355 had focused on the problems that the applicant would encounter if the motion were not successful.”

10.2 In Universal Trustee (M) Bhd v Lambang Pertama Sdn Bhd & Anor [2015] 7 MLJ 305, KK Wong J (as his Lordship JCA then was) said 360 that case law does not distinguish stay of execution from stay of proceedings; case law requires both the applicants for stay of execution and stay of proceedings to show 'special circumstances' to justify a stay; and an applicant for a stay of proceedings should bear a heavier burden vis a vis an applicant for a stay of execution because 365 such an application hinders the expeditious disposal of a suit.

10.3 In a nutshell, stay is legally defined as suspension of the case or some designated proceedings within it (See: Black's Law Dictionary; Henry Campbell Black (6th Edition, 1990, West Publishing Co, p.1413). The 370 guiding principles are:

The court has broad judicial discretion whether to grant or refuse a stay anchored on established judicial principles.

The degree of importance ascribed to the factor pleaded is dependent on the facts and circumstances of each case (see 375 Mohamed Mustafa v Kandasami [1979] 1 MLJ 126). S/N YijijqHnkqDXbWM7mn/Dg

Special circumstances, as the phrase implies, must be distinguished from ordinary circumstances. It must be something exceptional in character, something that exceeds or excels in some way that which is usual or common (see: Ming Ann 380 Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49; Kosma Palm Oil Mill Sdn Bhd(supra)).

RC 2012 did not stipulate any specific definition of what constitutes special circumstances, but the word "special" denotes an exceptional situation, which is left practically to the 385 opinion and judicial discretion of presiding judges (see: Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86).

The category of special circumstances can never be limited or closed, as from time to time and from case to case, different and various factors may be accepted as special circumstances (see: 390 Low Nam Hui & Sons Sdn Bhd v Huang Yan Teo [2007] 7 MLJ 13). FINDINGS OF THIS COURT 395 [11] It is not denied that the impugned land has always been known to the public as a TNB reserve land for the use of power lines and overhead electricity transmission tower, which was alienated to R2 for the proposed development, allegedly without notice to the surrounding residents. 400 [12] The current use concerned a supposed infringement by R1, of the Kuala Lumpur Structure Plan 2020 (which was gazetted on 04.11.2004): S/N YijijqHnkqDXbWM7mn/Dg

It is a master plan of planning policies for the entire region of Kuala Lumpur that includes proposals for land development from 2004 405 to 2024.

It formulates the proposals concerning developments and categories of land use in the region of Kuala Lumpur.

This supposed infringement by R1 concerning this proposed development on a reserve land classified for the use of power 410 lines and overhead power transmission lines needs to be thoroughly canvassed and ventilated at trial. [13] In the circumstances, it is my considered judgment that the balance of convenience and equity favours the granting of the stay requested:

R2 had only made bare averments that it will suffer financial or commercial loss in the event the stay is granted without producing any contemporaneous document to support the same: Paradise Boulevard Sdn Bhd v Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon [2021] MLJU 2889, CA had observed 420 that bare averments unsupported by evidence do not constitute evidence.

A stay hereunder cannot be equated with an injunction that would require an undertaking for damages. Such a requirement would not apply in a stay application on a public authority’s decision: 425 Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor [1998] 3 MLJ 289, CA. [14] I have examined all cause papers and the parties' respective submissions. It is trite law that: 430 S/N YijijqHnkqDXbWM7mn/Dg

Under O.53, r.3(5) RC 2012, a grant of leave under this rule shall not, unless the judge so directs, operate as a stay of proceedings in question: Nasioncom Holdings Bhd v Suruhanjaya Sekuriti [2008] 4 AMR 564 [2008] 4 MLJ 620, HC.

The guiding principle in granting stay of proceedings is to prevent 435 the judicial review being rendered an illusory or an exercise in futility: Puah Bee Hong & Anor v Pentadbir Tanah Daerah Wilayah Persekutuan Kuala Lumpur & Anor (Robert Teo Keng Tuan, Intervener) and another appeal [1994] 2 AMR 1427; [1994] 2 MLJ 601 at 610; [1994] 2 CLJ 705, SC.

It would be sufficient for the applicant to show that, without an order of stay, his substantive application would be rendered nugatory in the event he succeeded in his application: YAM Tunku Dato’ Seri Nadzaruddin Ibni Tuanku Ja’afar v Datuk Bandar Kuala Lumpur & Anor [2003] 1 AMR 352; [2003] 5 445 MLJ 128 at 143; [2003] 1 CLJ 21.

In Kosma Palm Oil (supra), FC observed:

The requirement of special circumstances for an application for a stay.

The court in Kosma Palm Oil Sdn Bhd was concerned with 450 an application to stay execution of a judgment after trial, where the burden on the appellant is higher, i.e. he has to show special circumstances.

A stay sought after trial and a stay under this Order are poles apart.

Thus, no fair comparison may be made of the two. All that an applicant for judicial review needs to do is to show that the status quo should not be altered to defeat any relief that may be had on the substantive application. 460 S/N YijijqHnkqDXbWM7mn/Dg [15] I take cognisance:

Of the supposed illegality by R1 in granting the impugned development order for the proposed development, supposedly contravening KLSP 2020 and KLCP 2020.

This legal issue must be appropriately ventilated and tested in 465 trial, and pending that determination, a stay ought to be granted. I find this issue constitutes special circumstances to justify a stay. Allowing the proposed development to proceed pending the determination of the legality of the impugned development order would cause irreversible changes to the land and render 470 this proceeding academic. [16] In light of the foregoing, I agree with the position taken by the Applicant that the balance of convenience and equity favours the granting of the stay. As a stay cannot be equated with an injunction that would require an undertaking for damages. In the circumstances, 475 a stay order under L.1 is allowed pending substantive determination of the principal application in L1 with costs in the cause CONCLUSION [17] In light of the foregoing and after closely scrutinising the application, 480 on the balance of probabilities, I find that this application has merit, and it is allowed with costs in the cause. Dated 30.07.2025 485 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 490 S/N YijijqHnkqDXbWM7mn/Dg For the Applicant: Phoebe Loi Yean Wei, together with 495 See Hau Tsien Messrs Thomas Phillip For the First Respondent (R1): Gayathri Chandrakasan Messrs Rao & Kamal 500 For the Second Respondent (R2): Dato Dr Abd Shukor Ahmad, together with Daneil Bock JR Wei, Selwyn Das and Ken Moo Messrs Shukor Baljit & Partners 505 S/N YijijqHnkqDXbWM7mn/Dg