Penang’s three-island mega-project: Summary of the Appeal Board decision

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Zakaria Ismail is the head of the Sungai Batu Fishermen's Unit - ANIL NETTO/ALIRAN

Akta Kualiti Alam Sekeliling 1974

Peraturan-Peraturan Kualiti Alam Sekeliling

(Lembaga Rayuan) 2003

Rayuan No.: LR/JAS/16-2019

(Di bawah Peraturan 3 (1) Peraturan-Peraturan Kualiti Alam Sekeliling (Lembaga Rayuan) 2003)

Zakaria Bin Ismail … perayu

dan

Ketua Pengarah Jabatan Alam Sekitar … responden

Summary of the decision of the Appeal Board

Quorum of the Appeal Board:

  • Judge Puan Rozina Ayob (chair/pengerusi)
  • Prof Dato’ Dr Mazlin Bin Mokhtar and
  • Prof Madya Dr Ramdzani Bin Abdullah

Appellant: Haji Zakaria Ismail

Lawyers for the appellant: Meena Raman (lead counsel), Jessica Binwani, Theiva Lingam and MS Kumaari

Lawyer for the respondent: Federal Counsel Puan Nurliyana binti R Azmi

The appellant filed a notice of appeal on 29 July 2019, under section 35(1)(e) of the Environmental Quality Act 1974 (EQA), appealing against the decision of the director general of the Department of Environment (DoE) dated 25 June 2019, which is an approval with conditions, of the environmental impact assessment (EIA) for a 4,500-acre reclamation project called the Penang South Reclamation Project.

The Appeal Board heard the arguments on the preliminary issue that was raised by the appellant’s lawyers under Section 34A(4)(a) of the EQA. Section 34A(4)(a) states:

“If the DG, on examining the report (which refers to the EIA) and after making such inquiries as he considers necessary, is of the opinion that (a) the report is not in accordance with the development plan or physical plan approved by the relevant approving authority… he shall not approve the report, giving reasons for not approving, and shall inform the person and the relevant approving authority accordingly.”

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The board considered the following issues:

  • Whether it was mandatory for the director general when considering the approval of the environmental impact assessment report to ensure it was in accordance with the approved development plan?
  • Whether the environmental impact assessment at the time of the approval was in violation of the Penang Structure Plan 2020?
  • Whether the decision of the approval of the draft Penang Structure Plan 2030 by the State Planning Committee on 14 March 2019 which was relied upon by the DoE was sufficient for the director general to give his approval.

The board held it was mandatory for the director general to comply with Section 34A(4)(a) of the EQA in approving the environmental impact assessment report.

The approval of the report was ultra vires Section 34A(4)(a) of the EQA and the decision of the director general was invalid and therefore null and void.

The approved draft Penang Structure Plan 2030 by the State Planning Committee, relied upon by the respondent (DoE), was not sufficient for the purposes of Section 34A(4)(a) of the EQA. It was not the development plan within the ambit of the section and it remained a draft structure plan as it had not yet been assented to by the state authority (which is the Governor) – which is required under Section 10(6) of the Town and Country Planning Act ’76, for the draft to become legally effective. (The Governor gave his assent to the Penang Structure Plan 2030 on 28 August 2019, and this plan was published in the gazette on 24 October 2019.)

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Hence, it was premature for the respondent to rely on the Penang Structure Plan 2030, as the relevant plan at that time was the Penang Structure Plan 2020.

The Appeal Board also looked at whether they had the power to regularise and cure this defect and concluded that Section 35(2) of the EQA had to be read together with the Rules of Court 2012. The board held that they did not have the inherent powers to cure and regularise this defect.

The preliminary objection by the appellant Zakaria Ismail was therefore allowed and the approval of the director general of the DoE on the Penang South Reclamation environmental impact assessment is now set aside as it was ultra vires, null and void of Section 34A(4)(a) of the EQA.

The board did not need to consider any other grounds or the merits of this appeal.

Our comments as lawyers:

This decision is very significant as it is not only important for the Penang South Reclamation case but all environmental impact assessment approvals as well by the DoE.

The Appeal Board decision is most important for understanding how the director general of the DoE must make decisions to ensure that the projects for which environmental impact assessments are done are in accordance with the structure plans or local plans which are legally effective.

Meena Raman is lead counsel for the appellant

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