By LS. Leonard
KUALA LUMPUR, Malaysia--On 13.3.2019, the Court of Appeal (COA) declared that the public hearing held by Datuk Bandar Kuala Lumpur (DBKL) on 27.2.2017 (held pursuant to Rule 5 of Planning Rules 1970) for the residents of Taman Tiara Titiwangsa, Kuala Lumpur, pertaining an adjacent development on Lot 9885, was null and void.
This case is documented as Dato’ Mohamad Yusof bin A Bakar & Anor v Datuk Bandar Kuala Lumpur  1 LNS 1494/ MLJU 1098 in the online law journals (Dato’ Yusof’s case). In essence, the COA in Dato’ Yusof’s case decided that:-
*DBKL’s failure to furnish the planning and technical reports during its Rule 5 public hearing, deprived the residents of Taman Tiara Titiwangsa a full and impartial hearing;
*DBKL was an interested party in the 27.2.2017 hearing since it was a Trustee in the land owner’s company which applied to develop Lot 9885.
DBKL’s endeavor to overturn this COA’s decision in our highest court failed when the Federal Court on 4.7.2022 dismissed DBKL’s appeal and ordered DBKL to pay RM50,000 costs to residents.
With the Federal Court’s ruling, residents of Taman Tiara Titiwangsa have succeeded in preserving COA’s decision in Dato’ Yusof’s case.
DBKL must take heed from the rulings made by the Federal Court and the COA that public participation in DBKL’s planning decisions forms part of the basic structure of a democratic society.
Public participation in town planning denotes a democratic progress where the fate of urban town planning is not left to be decided by authorities and developers alone but also to be tested by affected members of public vide participatory democracy.
The decision in Dato’ Yusof’s case serves as an eye opener to local authorities including DBKL that in promoting meaningful public participation, local authorities must strictly observe the principles of transparency, integrity and fairness.
Local authorities must ensure that planning decisions are open, procedurally fair and free from any corrupt practices.
Greater transparency, integrity and fairness in planning decisions can be achieved by providing all relevant information about the development to the public and implementing an effective communicative process involving various stakeholders and members of the public than the conventional ‘prepare-inform-defend’ formula.
As a start, DBKL can emulate the practice in MBPJ where copies of proposed layout plan, development proposal report and traffic impact assessment are furnished when requested by parties entitled to object to a proposed development.
By this initiative, members of the public and decision makers are presented with the opportunity to discuss the problem at hand, exchange ideas and suggest solutions and alternatives.
Finally, the rulings in Dato’ Yusof’s case also serve as a reminder to local authorities like DBKL to be independent; not biased and not to place itself in any conflict of interest.
This is due to the fact that as a local planning authority, DBKL stands as an arbitrator and mediator between the public and developers.
To eliminate conflict of interest and to demonstrate its independence, DBKL must put into practice the well-established principle that “justice should not only be done but should manifestly and undoubtedly be seen to be done (Lord Chief Justice Hewart in R v Sussex Justices ex parte McCarthy).
Call For Greater Transparency And Accountability, Integrity And Fairness In DBKL
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