Rebuttal of claims that Penang govt has no power to approve reclamation

 Court of Appeal has essentially affirmed the right of the state to reclaim via the State Structure Plan and the National Physical Planning Council.

From Zairil Khir Johari

The Penang state government wishes to correct the misrepresentation of facts reported regarding the Court of Appeal’s decision on June 30, 2026 in dismissing the appeal filed by seven fishermen, Sahabat Alam Malaysia, and Jaringan Ekologi dan Iklim regarding the Penang South Reclamation (PSR) project.

Claims that the Penang government has “no power to approve reclamation” are completely untrue and have zero basis in the Court of Appeal’s decision.

In fact, the reverse is true as the Court of Appeal essentially affirms the right of the state to reclaim via the State Structure Plan and the National Physical Planning Council (NPPC).

The Court of Appeal in Paragraph 35 (2) of its grounds of judgment held that in accordance with Section 4 of the Territorial Sea Act 2012, until the completion of the reclamation, the ownership of “territorial sea”, its “bed and subsoil” is vested solely in the federal government.

In Paragraph 36 of the grounds of judgment, the appellate court held that the first respondent and/or the second respondent (the town and country planning director and the state planning committee) had no power to grant planning permission for the reclamation. Based on this, the Court of Appeal expressly stated in the same paragraph that “this appeal should be dismissed” and “the High Court’s decision should be upheld”.

Two obvious inferences can be made from the above:

a. Firstly, planning permission is not strictly required because the land has not been formed and thus does not yet constitute an area over which the local authority has jurisdiction.

b. Secondly, planning permission is also not required because the reclamation project has already been approved via the State Structure Plan and the NPPC. This point is made clearer when we remind ourselves of the High Court decision.

The High Court had ruled as follows:

i. Paragraph 46 of the High Court grounds of judgment held that appellants were out of time to challenge the Penang Structure Plan 2030 (PSP 2030). On April 18, 2019, the NPPC agreed with the content of PSP 2030 whereby PSP 2030 was gazetted on Oct 24, 2019. The PSP 2030 contains a written statement accompanied by a main diagram plan where PSR project areas are shown as second priority areas which are areas committed for future development.

ii. More pertinent to the issue at hand, Paragraph 49 of the High Court grounds of judgment states that the appellants failed to challenge the legitimacy of the PSR project master plan. In fact, in Paragraph 51 of the judgment, the High Court meticulously made the following finding:

“[51] Based on the minutes of the NPPC meeting No. 1/2019, which convened on 18.4.2019, it is apparent that:

(a) The draft PSP 2030 was presented to the NPPC first by R1 as “Kertas Bil. 1: Draf Rancangan Struktur Negeri Pulau Pinang 2020”;

(b) The NPPC agreed to the draft PSP 2030 subject to certain conditions;

(c) Thereafter, only the PSR master plan was presented to the NPPC as “Kertas Bil. 2: Cadangan Pelan Induk Projek Tebus Guna Tanah Selatan Pulau Pinang (Penang South Reclamation) Pulau A, Pulau B dan Pulau C seluas 1821.09 hectar (4,500 ekar) di Daerah Barat Daya Pulau Pinang, Pulau Pinang untuk Tetuan Kerajaan Negeri Pulau Pinang” for advice;

(d) That is to say, advice was rendered by the NPPC for the PSR master plan based on the draft PSP 2030, which the NPPC itself had already agreed to and given advice on; and

(e) The 18-point advice given by the NPPC can be found in a letter received by R1 on 24.5.2019.”

iii. As the PSP 2030 and PSR project master plan has been approved by the state government of Penang and subsequently by the federal government through NPPC approval, there are clearly no legal issues pertaining to the commencement of work for the PSR project.

iv. In fact, the High Court in Paragraph 136 of its grounds of judgment clearly made the following finding:

“In any event, I find no illegality, irrationality, or procedural impropriety in the decision granting the final reclamation KM. Accordingly, I dismissed the JR application.”

7. The fact that the Court of Appeal expressly held that “this appeal should be dismissed” and “the High Court’s decision should be upheld” clearly proves that the High Court finding as above has been upheld by the Court of Appeal.

The Court of Appeal also agreed that the appellants were out of time in filing their judicial review application.

8. It is very clear that the Court of Appeal never made any finding that the commencement of work for the PSR project was not in accordance with the law. In fact, it affirms the authority of the state government to approve reclamation via the State Structure Plan and the NPPC.

Accordingly, any attempt to misrepresent the facts to argue that the reclamation is illegal is wrong, sensationalist, and irresponsible. - FMT

Zairil Khir Johari is the Penang infrastructure, transport and digital executive councillor.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.