Court of Appeal wrong in finding conflict of interest in Taman Rimba Kiara case, says lawyer

PUTRAJAYA (April 28): The lawyer for government-linked foundation Yayasan Wilayah Persekutuan (YWP) said the Court of Appeal (COA) was wrong in finding that there was a conflict of interest in having the Kuala Lumpur mayor and federal territories minister on the board of trustees of YWP when a development order (DO) was issued by the Kuala Lumpur City Hall (DBKL) to YWP and developer Memang Perkasa Sdn Bhd in developing the Taman Rimba Kiara land, the Federal Court heard on Thursday (April 28).

Tan Sri Cecil Abraham representing YWP submitted to a three-man bench via online proceedings that the application for the development of the Taman Rimba Kiara land was made solely by Memang Perkasa and did not involve YWP.

“The issuance of the DO was made solely to Memang Perkasa. There is no documentation to support the COA’s judgement that the application was made under the joint name of Memang Perkasa and YWP. That was an erroneous statement [by the COA],” he said in submitting his oral arguments to the apex court.

On Jan 27 last year, the appellate court overturned an earlier decision by the High Court on Nov 28, 2018 that rejected a joint bid by Taman Tun Dr Ismail or TTDI residents for a judicial review to get a certiorari order to quash the conditional planning permission and development order issued by DBKL.

This meant that the COA had quashed DBKL’s DO for luxury service apartments to be built in Taman Rimba Kiara.

The 2017 DO issued by DBKL was to construct eight blocks of luxury service apartments of up to 52 storeys, one block of affordable housing and an eight-storey podium car park.

The proposed project was first introduced during Datuk Seri Tengku Adnan Tengku Mansor’s tenure as the federal territories minister in 2016.

TTDI residents' associations had objected to the development, claiming that it will significantly increase the density of TTDI and irreversibly degrade Taman Rimba Kiara as a green lung.

To develop the land, YWP as the landowner of Taman Rimba Kiara had entered into a joint venture (JV) with Memang Perkasa. Under the JV, Memang Perkasa was to pay RM160 million to YWP in stages. But the YWP-Memang Perkasa JV had to get approval from DBKL to develop Taman Rimba Kiara.

The conflict of interest observed by the COA was that both the mayor and the federal territories minister sat on the YWP board. It observed that the applicant and the approving body were the same.

“Without such approval, there would be no JV, nothing to develop and no financial gain [for YWP],” the COA said last year. It held that there was a clear conflict of interest and DBKL’s approval was void.

"As the landowner, YWP is entitled to dispose of the land in any manner, including developing the land as long as there is no contravention of the law,” Cecil said in his client’s final appeal before Federal Court Judges Datuk Nallini Pathmanathan, Datuk Mohamad Zabidin Mohd Diah and Datuk Rhodzariah Bujang.

He added that the mayor at that time was not privy to planning permissions and the JV entered between YWP and Memang Perkasa despite sitting on YWP’s board.

“As I say, the mayor was not party to planning permission approvals and the JV. The planning permission went through thorough and transparent processes,” he told the bench.

As for the DO issued by DBKL, Cecil also said that the mayor did not sign it and there is no evidence that he authorised it, showing that the DO was signed by DBKL’s director of the planning department.

“The mayor didn’t sit in the planning meetings. There is no evidence that he participated in the meetings and issued directions for the DO. The order was made in accordance with council procedures,” he added.

“I set out that conflict does not arise when the mayor as public authority exercises his power conferred by the law. The mere fact that the public authority sits on the board of directors does not give rise to a conflict of interest."

The hearing will continue at a later date before the judges. There will be a case management to set the dates later on Thursday.

Edited by Kang Siew Li

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