Apex court quashes development approval for sensitive hillslope in Penang

 

After nearly eight years of legal wrangling, Sungai Ara residents received an apex court order to overturn the approval of a development project on sensitive hill land in Penang.

A three-person apex bench chaired by Chief Judge of Malaya Mohamad Zabidin Mohd Diah this morning unanimously restored a decision by the Appeals Board under the Town and Country Planning Act 1976.

The other panel members were Federal Court judges P Nallini and Rhodzariah Bujang.

On Nov 20, 2015, the Appeals Board under the Act upheld the residents’ objection against the project’s approval and the granting of planning permission by the Penang Island City Council (MBPP).

However, developer Sunway City (Penang) Sdn Bhd then took the case to the High Court, which on May 29, 2017, overturned the Appeal Board’s decision and restored the approval given to the developer.

The residents then appealed to the Court of Appeal, which on May 7, 2021, dismissed the appeal. They subsequently appealed to the Federal Court.

During today’s online proceedings, the apex court ordered two respondents in the appeal - the developer and MBPP (the local authority)- to pay a total of RM300,000 in costs to the residents. However, no order to costs was made against the third respondent, the Appeals Board.

Holistic approach needed

In the ruling read out by Nallini, the panel said there is a need for a holistic approach in decision-making in relation to property development, particularly on hill land and steep slopes, in order to ensure sustainable development.

It pointed out that the local authority went outside the four corners of its prescribed authority under Section 22 of the Town and Planning Country Act 1976.

Federal Court judge P Nallini

Section 22 states that application for planning permission - such as development affecting hilltops or hill slopes, in an area designated as environmentally sensitive - must take into account any objections raised by the public.

“With respect to the inclusion of Section 22(2A) (into the Act), development affecting hilltops or hillslopes is no longer merely an issue of local or state governance. It is also a federal-level and national issue. 

“The inclusion of the role of the federal government in town and country planning would promote coordination between the local authority, state-level authorities, and the federal government, thus ensuring development takes place in a well-balanced manner and accords with the sharing of responsibilities and the principle that the public interest precedes private interest in the use and development of land,” Nallini said.

She said the lower courts had erred in failing to appreciate the true significance of the Penang Structure Plan 2020, which contained a clear prohibition against the use of hill land as specified for any development including housing, hotel, resort, commercial and industry or even agricultural activity.

“This is consonant with the overarching objective of the Structure Plan. Exceptions to that prohibition must be interpreted purposively and restrictively so as not to depart from the Structure Plan and its objective of conserving hill land, preventing its further degradation, and maintaining ecological balance,” she ruled.

“For the foregoing reasons, we conclude that the local authority’s approval of Sunway’s application for planning permission is ultra vires and void,” Nallini said.

The Sungai Ara residents are represented by a legal team headed by Gurdial Singh Nijar.

Lawyers Christina Siew and Wang Kang Ale acted for Sunway City, while Karin Lim and M Murgan appeared for MBPP.

The project in question, dubbed Sunway Hills, is 250 feet above sea level and is situated at a gradient of 25 degrees.

Back in 2012, MBPP approved the “special project” for Sunway City, allowing the construction of 600 units of high-rise apartments and bungalows on the hill land.

The proposed development envisages 13 blocks of condominiums, 3-storey bungalows as well as other structures over a total area of 80.89 acres, 43 percent of which comprises hill land. - Mkini