LLB01103 ADMINISTRATIVE LAW

LING HANG CHOU 050103

TUTORIAL 6

An application was made by Iskandar pursuant to Order 53 Rule 3 of the Rules of

Court 2012 for leave to apply an order of certiorari to quash the decision of the Mayor
of Petaling Jaya, who approved the development of the land adjacent to his. He
challenged the decision on the ground that the increase in population density from 30
persons per acre to 285 per acre is unreasonable. He alleged that the Mayor should
justify his decision. The ten times increase of population density in the area if not
rebutted would obviously be burdensome on Iskandar and become an infringement of
the doctrine of proportionality. Further, Iskandar contended that the said planning
appears to be a reversal of the Mayor's policy that only low-flats developments are
allowed in Bukit Elit. It amounts to a breach of legitimate expectation.

Advise three possible grounds that may be used by Iskandar to challenge the
decision/policy of Mayor in judicial review.
ANSWER TUTORIAL 6:

The first issue is whether Iskandar can challenge the decision made by the Mayor of
Petaling Jaya in the matter of the land development adjacent to his on the ground of
irrationality that the increase in population density from 30 persons per acre to 285 per acre
is unreasonable.

A decision maker must not exercise his discretionary power to make an

unreasonable decision, otherwise, the decision will be challenged and reviewed on the
ground of irrationality. The principle of irrationality is a decision maker in whom a
discretionary power is vested must not exercise that power in a way that no reasonable man
would. In other words, irrationality applies to a decision which is outrageous in its defiance of
logic or of accepted moral standards that no sensible person who had applied his mind to
the question to be decided could have arrived at it. It can be referred to the case of Chai
Choon Hon v Ketua Polis Daerah Kampar. In this case, where a license was granted to
hold a meeting during a period under Section 27(2) of the Police Act 1967. A condition was
imposed that the number of speakers would only be seven. The Supreme Court ruled that
the condition imposing the restriction on the number of speakers was unreasonable. There
was a specific limit imposed in the licence for holding the meeting. Therefore, there was no
valid reason for restricting the number of speakers within the prescribed time-limit. This
condition was unreasonable in the circumstances as the police had the means to deal with
any infringement of the time-frame.

By applying the above principle and case to present case, the Mayor’s decision to
increase the population density from 30 persons per acre to 285 per acre is irrational and
unreasonable because it obviously become a burden to Iskandar. Hence, the decision of the
Mayor of Petaling Jaya in approving the development of the land on the ground that the
increase in population density from 30 persons per acre to 285 per acre is unreasonable.
Thus, Iskandar can challenge the decision of Mayor on the ground of irrationality.

The second issue is whether the ten times increase of population density in the area
would obviously be burdensome on Iskandar and become an infringement of the doctrine of
proportionality.

There are two situation of the doctrine of proportionality in judicial review. First, the
proportionality requires public authority to maintain a sense of proportion between their
particular goals and the means they employ to achieve those goals, thus their action impinge
on individual rights to the minimum extent necessary to preserved the public interest. The
administration must draw a balance of the pros and cons involved in any decision of
consequence to the public and individuals. In the case of Majils Perbandaran Pulau
Pinang v Syarikat Bekerjasama Serbaguna Sungai Gelugor, the society owned the land
in Pulau Pinang. The MPPP without giving the society any notice impose additional
conditions which states that the completion of 30% low cost to be sold at RM25 000 per unit
and the sale of the units are limited to members of the society only. The society disputed the
condition on the ground that there was no such conditions in the original planning permission
and the society had already sold 70 out of 100 unit of 2 bedrooms at RM35 000. The Federal
Court held that proportionality being used as a tool to test the validity to the refusal of
planning permission in particular in determining whether the discretionary power to grant
planning permission had been exercised improperly or mistakenly, and indeed it was
disproportionality and ultra vires.

In the present case, the original policy of Mayor is only allowed low-flats
developments in Bukit Elit. However, Mayor decide to increase ten times of population
density in the area of Bukit Elit is disproportionate. It becomes an infringement of
proportionality to Iskandar. Hence, Iskandar can challenge the decision of Mayor in
increasing ten times of population density in the area of Bukit Elit on the ground of
proportionality.

The third issue is whether Iskandar can challenge the policy of Mayor on the ground
of breach of substantive legitimate expectation in judicial review.

Substantive legitimate expectation is a lawful representation when an individual will

receive or continue to receive a substantive benefit of some kind even if he or she does not
have a legal right to the benefit. It is because the representation gives rise to a legitimate
expectation. The legitimate expectation may arise from a promise made by the authority, or
from a consistent past practice. Substantive legitimate expectation involves an affected
person expecting that the authority when making his decision would not reverse on his
previous policy. The courts take three practical questions into consideration in determining
whether to give effect to an applicant's legitimate interest namely, whether a legitimate
expectation has arisen as a result of a public body's representation; whether it is unlawful for
the public body to frustrate the legitimate expectation; and if so, what the appropriate remedy
is. In the case of Suwiri Sdn Bhd v Government of the State of Sabah, the plaintiffs were
granted a Timber Licence to feel and extract timber in an area of 5665.59 hectares from 13
March 1993 to 13 March 1998. The defendants later refused to renew the Timber Licence
but issued a new license to the plaintiffs with a reduced area of 2204.41 hectares. The rest
3461.18 hectares was distributed to other three companies under separate licences. The
plaintiffs alleged that the defendants frustrated their legitimate expectation. The court held
that the defendants committed violation of the plaintiffs’ legitimate expectation as the
defendants had assured the plaintiffs that their application would be approved and promised
to write to the Director of Forests to extend the plaintiff’s Timber Licence. The decision made
by the defendants was quashed on the ground of substantive legitimate expectation.

Concerning the current case, the Mayor had increased of population in Bukit Elit,
originally from 30 persons per acre to 285 persons per acre. It is a reversal policy decided by
the Mayor that only low-flats developments are allowed in Bukit Elit. This clearly showed that
the Mayor had breached the substantive legitimate expectation and Iskandar may challenge
it in judicial review.

It short, it is submitted that Iskandar may challenge the decision made by Mayor
Petaling Jaya that increase in population density from 30 persons per acre to 285 per acre
on the ground of irrationality, disproportionality and breach of substantive legitimate
expectation as the decision made is against its original policy.