ONG HOCK TEK v DATUK BANDAR KUALA LUMPUR PENCELAH DICADANGKAN KAISAR MAXIM SDN. BHD

Case Significance

Illustrates the special-circumstances and balance-of-convenience analysis when a court is asked to stay a planning development order pending judicial review, and the distinction drawn between a stay and an interlocutory injunction.

This High Court decision at Kuala Lumpur concerns an application for a stay in judicial review proceedings brought against the local planning authority and a developer. The applicant, having obtained leave under Order 53 rule 3 of the Rules of Court 2012 to seek certiorari to quash a development order, applied to stay the effect of that order pending the substantive hearing. The impugned decision was the grant by the Datuk Bandar Kuala Lumpur (the Mayor of Kuala Lumpur, the city's planning authority) of a conditional development order authorising a large mixed apartment development of several high-rise blocks with basement car parking on a lot that the applicant contended was classified as reserve land for power lines and electricity transmission. Both the planning authority and the developer opposed the stay, arguing the application lacked merit and should be dismissed with costs. The court's task was to decide whether special circumstances existed to justify staying an administrative decision pending review, applying the principle that a stay in judicial review is not equated with an interlocutory injunction and therefore does not require the applicant to give an undertaking as to damages. The judge reasoned that the legality of the development order in light of the applicable structure and local plans raised a serious question that ought to be ventilated and tested at the substantive hearing, and that permitting the development to proceed in the meantime would cause irreversible changes to the land and risk rendering the proceedings academic. On that footing the court found that the balance of convenience and equity favoured preserving the position until the principal application was determined. Concluding that the application had merit, the court allowed the stay with costs in the cause. The judgment is a useful illustration of how the courts assess special circumstances and the balance of convenience when asked to stay a planning approval pending judicial review, and of the distinction between a stay and an injunction in that context.