SHAH ALAM: The High Court has dismissed the Subang Jaya City Council’s application for a judicial review against the Selangor Appeals Board for directing it to issue an operating licence to a kindergarten for children with special needs in a housing estate.
After going through the affidavits, Justice Shahnaz Sulaiman said she was satisfied that the board had followed all procedural requirements.
“This court therefore finds no procedural impropriety or illegality,” she said in her 18-page judgment posted on the judiciary’s website last week.
Businessman Lee Teng Hooi had applied for permission from the then Subang Jaya Municipal Council in 2019 to run the kindergarten at 23, Jalan SS 19/2, Subang Jaya.
The council rejected the application in December 2019 after considering supporting letters from seven neighbours and two objections from Beaconhouse Malaysia Sdn Bhd, which ran another kindergarten for normal children in the vicinity.
Among others, the local authority said it followed two guidelines on setting up kindergartens and nurseries (GP027) issued by the town and country planning department in April 2012 and July 2017.
On July 2, 2020, Lee filed an appeal with the board, which reversed the council’s decision and ordered that the kindergarten be given permission to operate until Dec 31, 2023.
Dissatisfied, the council, represented by Manpal Singh Sachdev, filed the judicial review to quash the board’s decision. Lee was also made a party to the action.
Shahnaz said a reading of the purpose and background of the 2012 guidelines showed that there was nothing to suggest they were formulated pursuant to any provision in the Town and Country Planning Act 1976.
“In the considered view of this court, if GP027 was not drafted in pursuant to any provision of the Town and Country Planning Act 1976, it cannot have the force of law,” she said.
She said the council took the stand that GP027 was approved at the cabinet meeting on June 21, 2017, and at the National Council for Local Government on July 10, 2017 and, hence, had the force of law.
“This court is of the view that the applicant (the council) is stretching the meaning of force of law to include any decisions of the Cabinet. This contention, therefore, cannot stand,” she said.
The judge said the board, represented by senior federal counsel Siti Radziah Kamarudin, had allowed the council and Lee, represented by Manoharan Malayalam and Anis Salihah Abdul Malek, to present their respective cases.
“The first respondent (the board), in allowing the second respondent’s (Lee) appeal, had also given the applicant (the council) the jurisdiction to impose conditions (in running the kindergarten).
“This was to ensure any traffic issues or problems when the parents pick up their children from the kindergarten would be mitigated and reduced,” she said.