SHAH ALAM: The High Court here has set March 21 to decide whether the Bangsa Ria Day Care Centre for children with disabilities can continue operations at its current premises at No. 40, Jalan 12/14, Petaling Jaya.
This follows a judicial review application filed by two neighboring Section 12, Petaling Jaya residents, seeking to quash the planning permission granted by the Petaling Jaya City Council (MBPJ) allowing the premises to be used as a day care centre for children with disabilities.
The two residents are also seeking a court order restraining the owner of the premises from using the house as a day care centre, or for any other use except as a dwelling house.
Additionally, the two applicants are also seeking an order for the respondents to pay the applicants damages for the reduction in value of the applicants' house and for nuisance, with the damages to be assessed by a Senior Assistant Registrar of the Court.
In submissions on Wednesday before High Court Justice Vernon Ong, counsel for the applicants V. Jeya Kumar said the provisions of the National Land Code must be followed by the respondents, namely the MBPJ and the owner of the premises, Ramesh Sivaraj.
"It is very clear and specific, once a land is alienated and a condition is imposed on the title, that condition remains and cannot be changed," said Jeya Kumar.
He added that what happened was that the landowner applied to the local council to make the change in land provisions.
Jeya Kumar, who read from a Statement of Judicial Review to illustrate the background of the case, added that the respondents who lived in a "quiet residential area" had suffered nuisance "by reason of the unlawful conduct of the applicants."
"The applicants have suffered nuisance throughout the day from 8.30 am to 5pm, Monday to Friday as a result of intolerable noise made by the special children as well as their attendants and carers.
"(The applicants have suffered) nuisance of experiencing the uncomfortable sensation of seeing the disabilities and sufferings of all the special children, the whole day, day in day out," said Jeya Kumar.
In response, MBPJ lawyer Robin Lim said the local authority had powers to approve changes in the use of the land.
"The applicant had ample notice of what the local authorities intended to do," he added.
Meanwhile, Ramesh's lawyer J. Rohan Arasoo argued that judicial review proceedings could only be made against public and administrative bodies.
"My client is a citizen, who has made decisions based on the approvals of the first respondent (MBPJ). My client had only tenanted the land after receiving the approval of the planning authorities," said Rohan Arasoo.
He added the purpose of judicial review was to ensure public bodies act lawfully and perform their duties.
"The first respondent had performed their duties lawfully. My client had not made any public decision which should be referred to this court.
"On damages for loss of value of the house, it is wrong in law for the applicants to claim a private law remedy of damages in a public proceeding," said Rohan Arasoo.
He added the applicants had claimed a reduction in the value of their house but had not produced any evidence of this from any valuer, before addressing the claim for nuisance, which he called "preposterous in nature".