PUTRAJAYA (July 25): The Federal Court heard on Monday that there was indeed a “glaring” conflict of interest in having the Kuala Lumpur mayor and Federal Territories Minister on the board of trustees of YWP when a Development Order was issued by the Kuala Lumpur City Hall (DBKL) to YWP and developer Memang Perkasa Sdn Bhd to build properties on the Taman Rimba Kiara land.
TTDI residents’ lawyer Datuk Dr Gurdial Singh Nijar told the Federal Court that YWP is in fact a corporate social responsibility (CSR) arm of DBKL while the office of the mayor is a trustee of YWP.
He also contended that the mayor at that time, Tan Sri Hj Mohd Amin Aziz, via YWP had contractually committed to ensuring Memang Perkasa obtained the Development Order for payment of approximately RM160 million to the CSR arm for the land.
Gurdial said the Development Order was eventually given to Memang Perkasa by the mayor which showed a clear conflict of interest.
“The Datuk Bandar (mayor) hence wears two hats — one as a trustee of the applicant (YWP) and the other as the approver. It is our humble submission that the conflict of interest cannot be more glaring,” Gurdial said in his submissions before Federal Court Judges Datuk Nalini Pathmanathan, Datuk Mohamad Zabidin Mohd Diah and Datuk Rhodzariah Bujang.
This appeal concerns a Jan 27, 2021 decision by the Court of Appeal that overturned an earlier decision by the High Court on Nov 28, 2018 rejecting a joint bid by Taman Tun Dr Ismail (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 appellate court had quashed DBKL’s Development Order to Memang Perkasa for luxury service apartments to be built in Taman Rimba Kiara.
The 2017 Development Order 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 was also observed by the COA. It found that both the mayor and the Federal Territories Minister sat on the YWP board. It noted 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.
Gurdial also further added that according to Memoranda and Articles of Association for YWP, the mayor and the FT Minister are trustees by virtue of their offices.
“The office of Yayasan Wilayah is in fact located in the DBKL building. They even bear the same address,” Gurdial said.
He also added that the JV agreement, on the whole, seemed “lopsided” to Memang Perkasa.
“The JV agreement would show that Yayasan Wilayah (in which the Datuk Bandar [mayor] was a director and trustee) had committed in writing, in irrevocable terms, in unequivocal terms, that it would ensure that planning approvals be issued before the land was given to them. The mayor had also yet to hear objections from local residents under Rule 5(3) of the Planning Rules.
“The application for the Development Order was made and considered and deliberated upon independently,” he said.
He contended that YWP and Memang Perkasa jointly applied for the Development Order which required approval from the mayor.
“As such, viewed in context of the terms of this collaboration, we humbly submit that the application for the Development Order is in reality, a joint application by both Yayasan Wilayah (of which the Datuk Bandar is a trustee and owes a fiduciary duty) and the private developer, Memang Perkasa, to be approved by the Datuk Bandar,” he said.
At a previous hearing, Tan Sri Cecil Abraham representing YWP submitted that the mayor then 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 Development Order 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 Development Order was signed by DBKL’s director of the planning department.
Gurdial argued on Monday that instead of the former mayor answering the claim of conflict of interest, Memang Perkasa had answered it via an affidavit, which he said they have no business doing.
“With respect, the developer being an applicant of the impugned Development Order and an interested party, has no business to allude to whether there was a conflict of interest vis-à-vis the Datuk Bandar.
“This suggests a detailed and intimate knowledge of the workings of the Datuk Bandar's internal management. Perhaps it might not be inapposite to draw the necessary inference that they seem to be working hand in glove?" he suggested.
The appeal via Zoom continues on Tuesday (July 26) with Datuk Seri Gopal Sri Ram who is representing Memang Perkasa to reply to Gurdial’s submissions.
Lawyer B Thangaraj represented the Kuala Lumpur mayor.