Riduwan Bin Rahmat v Majlis Bandaraya Petaling Jaya (BA-25-12-01/2025)

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PERSATUAN PENGANUT DEWI SRI MAHA MARIAMMAN ... RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT (Enclosure 10) Introduction

On 23.4.2025, the Applicant was granted leave to file an application for judicial review against the Respondents. S/N ls5w5Z6CgE60eV/ti/uC0g

Enclosure 10 is the Applicant’s substantive application for a certiorari to quash the First Respondent’s decision granting the 2nd Respondent a condition development order dated 28.6.2024 (Conditional Approval) to build a 2-storey temple on land held under Lot 70260, Jalan PJU 10/1, Damansara Damai, Pekan Baru Sungai Buloh, Daerah Petaling, Selangor (Land).

After considering the cause papers and submissions by the parties, this Court dismissed the Applicant’s application. The following are the reasons for the decision. Background facts Applicant

The facts, gleaned from the cause papers and supporting documents, leading to this application are as follows. The Applicant instituted this application in his personal capacity and as chairman of the New Apartment Idaman Residents’ Association.

Vide Selangor State Gazette Notification No. 2208 dated 7.6.2012, the Land was reserved to be used as a temple site to be maintained by the 2nd Respondent, which was not registered with the Registrar of Societies (RoS). S/N ls5w5Z6CgE60eV/ti/uC0g

Circa 2022, the First Respondent erected a notice informing neighbouring areas to the Land of the application to erect a temple on the Land and invited views.

The Applicant objected to the development of the Land as a temple site stating –

(i) the neighbouring areas were made up of predominantly Muslim residents;

Despite several meetings with the First Respondent, the Applicant was not informed on the outcome of the application and/or his and the residents’ objections. The Applicant states that it was only vide letter dated 5.11.2024 that he was informed of the Conditional Approval.

The Applicant contends that he and the residents of the Apartments are adversely affected by the Conditional Approval and alleges – S/N ls5w5Z6CgE60eV/ti/uC0g

(i) the decision was illegal as it contravenes sections 21(6), 21(7), 22(1), 21A(1)(ea) Town and Country Planning Act 1976 (Act 172) and Rules 7 and 10 Town and Country Planning (Control of Planning) (General) (Selangor) Rules 2001 (Rules);

The First Respondent’s affidavit in reply was affirmed by TPr Lee Lih Shyan. Briefly, he averred –

(i) the State Executive Council approved the Damansara Damai Development Master Plan on 29.1.2000, wherein the Land was designated to be used for a place of worship; S/N ls5w5Z6CgE60eV/ti/uC0g

(v) the 2nd Respondent was registered with the RoS and remained active as at 20.6.2024;

(x) the Manual Garis panduan dan Piawaian Perancangan Negeri Selangor (Edisi Keempat) approved by the State Executive Council stipulated a place of worship for every 5,000 residents and the 2020 census showed that Damansara Damai is home to 5,450 Indians; and

The First Respondent denied all the Applicant’s allegations and maintained that at all material times, the First Respondent had considered all the relevant consideration; including the Applicant’s objections and acted legally and reasonably in granting the Conditional Approval. S/N ls5w5Z6CgE60eV/ti/uC0g 2nd Respondent

The 2nd Respondent’s affidavit was affirmed by its Chairman. Briefly he averred –

(i) the 2nd Respondent is a registered society with the RoS as Persatuan Penganut Dewi Sri Maha Mariaman, Damansara Damai, Petaling Jaya, Selangor (PPL-003- 10-03032009) and has since applied to correct a clerical mistake in its’ name in its registration;

(v) although the 2nd Respondent obtained the Conditional Approval, it still needs to get the approval from the various agencies including the Building Control Department in the First Respondent, before construction works can start; and

The 2nd Respondent denied the Applicant’s allegation of traffic congestion which they say is unsupported and speculative. They maintained the First Respondent complied with all the relevant provisions of law, regulations and guidelines in granting them the Conditional Approval. Principles of law

Judicial review of local authorities’ decisions plays a pivotal role in ensuring that local authorities exercise their powers lawfully and fairly.

In judicial review proceedings, this Court is tasked with the responsibility to examine whether the local authority has acted within its powers the law and reached its decision in a manner that is reasonable and in compliance of its procedurally requirements. This is to ensure that the local authorities’ S/N ls5w5Z6CgE60eV/ti/uC0g decision-making process adheres to the fundamental tenets of legality, rationality and fairness.

The principal grounds for judicial review are traditionally categorised as illegality, irrationality and procedural impropriety (Council of Civil Service Unions v. Minister of the Civil Service [1985] AC 374 at 410; [1984] 3 All ER 935, Peguam Negara Malaysia v Chin Chee Kow (sebagai setiausahaPersatuan Kebajikan dan AmalLiam Hood Thong Chor Seng Thuan) and another appeal [2019] 3 MLJ 443 at 464).

Through these proceedings, this Court will review the legality, rationality and procedural propriety of the First Respondent to ensure the authority has acted within its powers. Issues to be determined

After a careful perusal of the cause papers, this Court found that the Applicant’s application to quash the First Respondent’s Conditional Approval was largely founded on the following grounds –

(i) the 2nd Respondent’s locus standi;

Section 6(2) of the Societies Act (Act 832) reads – “Until a local society is registered under this Act, no person shall, without a written permission of the Registrar, organize or take part in any activity of or on behalf of the society, except only to apply to, or correspond with the Registrar.”

This Court finds that the Applicant’s challenge to the 2nd Respondent’s locus standi is in respect to their name. The 2nd Respondent named in this application is Persatuan Penganut Dewi Sri Maha Mariamman as this is the society named in the gazette as the society charged with the maintenance of the temple.

The application to develop the Land was made in the name of the 2nd Respondent and the Condition Approval is also issued in this name. S/N ls5w5Z6CgE60eV/ti/uC0g

The society that appeared in this application is Persatuan Penganut Dewi Sri Maha Mariaman, Damansara Damai (Society) and they are registered as such with the RoS. The Society has also applied to amend the spelling of its name to reflect the spelling of the society’s name in the gazette.

However, the Applicant’s objection is not limited merely to the spelling of the name, they say that the Society is not the society named in the gazette by virtue of the inclusion of “Damansara Damai” in their name.

It must be pointed out that the Applicant’s only objection to the Society is that they are not the 2nd Respondent and therefore should not be heard on the issue of the validity of the Conditional Approval. He did not challenge the validity of the gazette or the First Respondent’s jurisdiction to grant planning permission to the 2nd Respondent.

In response, the Society argues that the Applicant’s objections are a belated afterthought and point to the cause papers where no objections were taken to the Society being the 2nd Respondent. This includes the injunction obtained by the Applicant to restrain the Respondents from acting on the Conditional Approval.

It is a fundamental principle of civil litigation that only parties named in the suit have the right of audience before the Court. The Society is not the 2nd Respondent in this application and S/N ls5w5Z6CgE60eV/ti/uC0g the fact that they share the same address, or that they have filed affidavits and participated in the proceedings does not automatically give the Society the legal standing in this application. Until properly joined, such person remains a stranger to the action.

It is an inescapable fact that the Society and the 2nd Respondent are not the same entity. Their legal entities cannot be interchangeable for convenience. The Society is a stranger to this application and this Court cannot permit a non-party to assume a right of audience simply by showing up and filing affidavits.

For this reason, this Court finds that the Society is not the 2nd Respondent and therefore cannot address this Court on the validity of the Conditional Approval given to the 2nd Respondent. Illegality and procedural impropriety

The Applicant’s objection that the First Respondent acted illegally and contrary to procedural propriety is premised on the provisions of Act 172 and the Rules as follows –

(i) section 21(6) and (7) Act 172 which read – S/N ls5w5Z6CgE60eV/ti/uC0g “(6) If the proposed development is located in an area in respect of which no local plan exists for the time being, then, upon receipt of an application for planning permission, or, where directions have been given under subsection (3), upon compliance with the directions, the local planning authority shall, by notice in writing served on the owners of the neighbouring lands inform them of their right to object to the application and to state their grounds of objection within twenty-one days of the date of service of the notice.

(a) the applicant for planning permission; and

(b) any person who has lodged an objection pursuant to subsection (6) and who, in lodging the objection, has requested a hearing.”; and

The requirement for a local planning authority to serve notice to neighbouring landowners and hear objections only applies "if the proposed development is located in an area in respect of which no local plan exists for the time being."

In this present application, the First Respondent has established that the State Executive Council approved the local plan for the area on 14.9.2022. Since a local plan is already in place, the First Respondent is not legally required to notify the owners of the neighbouring land nor hold a hearing for the objections under this provision.

It is also noteworthy that the statutory right to notification and to object is restricted to "owners of the neighbouring lands," as defined in section 21(8) of Act 172.

The Applicant is not an "owner of neighbouring lands" within the meaning of the provision. The Applicant’s attempt to stretch this provision to include them is unsupported by the provision. The statutory right to be informed of the 2nd Respondent’s application for a development order of the Land and the right to object either under section 21(6), (7) or Rule 10 do not arise at all. (Badan Pengurusan Bersama South City Plaza v Kerajaan Malaysia & Ors [2020] MLJU 1589 at para [33]-[34]) S/N ls5w5Z6CgE60eV/ti/uC0g

Courts must interpret planning procedures according to the statutory framework enacted under Act 172 and cannot expand objection rights beyond what Parliament intended.

In any event, this Court is satisfied that the First Respondent did in fact notify the owners of the neighbouring lands of the 2nd Respondent’s application and gave them the requisite time to raise their objections.

Section 21A(1)(ea) Act 172 reads – “In addition to the documents and plans required to be submitted under subsection 21(1) for planning permission, the applicant shall submit a development proposal report which shall contain the following –

(a) … (ea) the analysis of and mitigation measures for social impact and other impacts as determined by the local planning authority.

It is clear that the requirement to include an analysis of social impacts including traffic assessments is expressly subject only to the categories "as determined by the local planning authority."

In the present case, the First Respondent pointed to the Pekeliling Ketua Pengarah Perancangan Bandar dan Desa (PLANMalaysia) Bilangan 4 and the Panduan Pelaksanaan S/N ls5w5Z6CgE60eV/ti/uC0g Penilaian Impak Sosial bagi Projek Pembangunan dan Tatacara Pemprosesan Laporan Penilaian Impak Peringkat Negeri Selangor (Edisi 2) (Panduan) dated November 2020 which only mandate a formal social impact assessment for Categories A and B developments. A place of worship does not fall within these categories.

This was further confirmed by the Addendum to the Panduan and the state guidelines, which specify that the construction of a temple does not fall under Social Impact Assessment Project Categories 1, 2, or 3.

This Court undertook a careful examination of the statutory provisions and guidelines which govern the First Respondent and finds that the Applicant’s objections are misconceived. The Applicant’s argument completely ignores the existence of a local plan and the express exemption from providing mandatory social impact and traffic assessments under the State’s regulations and/or guidelines.

This Court finds that the First Respondent did not offend any statutory provision in granting the Conditional Approval to the 2nd Respondent. The First Respondent has adhered to the processes and procedures which govern the granting of the Conditional Approval to the 2nd Respondent. S/N ls5w5Z6CgE60eV/ti/uC0g Irrationality

In Lee Freddie & Ors v Majlis Perbandaran Petaling Jaya & Anor [1994] 3 MLJ 640, Mahadev Shanker J (as His Lordship then was) opined that the Court’s role in judicial review proceedings is to ensure that the local authority acted fairly and with "due and fair regard to all the conflicting interests."

In the present application, the First Respondent exercised its planning discretion by adhering to Damansara Damai Development Master Plan, Act 172 and the various guidelines in granting the Conditional Approval to the 2nd Respondent.

This is evident from their affidavit wherein the First Respondent averred – “… Responden Pertama dalam mempertimbangkan permohonan Responden Kedua, telah mengambilkira kerja-kerja naiktaraf jalan yang telah dan akan dilakukan seperti sistem jalan sehala di Skim Pembangunan Damansara Damai yang telah diap dan beroperasi sepenuhnya pada 18.5.2024, laluan khas dari Jalan PJU 10/1B hingga ke Plaza Tol Sungai Buloh, cadangan ramp dari Jalan Kepong Sungai Buloh ke Plaza Tol Sungai Buloh, cadangan naiktaraf Jalan PJU 10/1C hingga ke persimpangan Jalan PJU 10/1, cadangan pembinaan laluan pejalan kaki di Jalan PJU 10/1C dan Jalan PJU 10/5.” S/N ls5w5Z6CgE60eV/ti/uC0g

The Applicant is aggrieved because the First Respondent did not reject the 2nd Respondent’s application after considering his objections. This argument is based on the assumption that the First Respondent is obligated to agree with the Applicant, rather than consider his objections as part of the decision making process.

In Lee Freddie (supra), the Court was clear: "Giving a person an opportunity of being heard is one thing. Saying that he is thereby entitled to dictate to the [authority] how it should decide is quite another."

This Court was mindful of Lord Hoffman’s dicta in Tesco Stores Ltd v. Secretary of State for the Enviroment & Ors [1995] All ER 636 at 657 – “… The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process. S/N ls5w5Z6CgE60eV/ti/uC0g This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely, that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.” (emphasis added) (see Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan, [1999] 3 MLJ 1 at 77; [1999] 3 AMR 3529; [1999] 3 CLJ 65). Conclusion

This Court is satisfied that the First Respondent has demonstrated that its decision making process was structured, objective, and within the statutory and regulatory framework and prevailing planning criteria in the State. The First Respondent has balanced the objections of the Applicant and the residents against the broader public and communal need for a place of worship. Having considered the relevant technical reports and the specific zoning of the Land, the First Respondent was well within its statutory powers to grant the S/N ls5w5Z6CgE60eV/ti/uC0g S/N ls5w5Z6CgE60eV/ti/uC0g S/N ls5w5Z6CgE60eV/ti/uC0g