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Stunning victory for Sungai Ara residents, Penang NGOs: Federal Court blocks sensitive hill-slope project

This landmark judgment is a stupendous achievement for environmental law and a triumph for public interest advocacy

Sungai Ara residents struggle on in 2017 - ANIL NETTO

A group of Sungai Ara residents have scored a stunning victory in the Federal Court as top judges decided today in their favour after a decade-long struggle to block a development project on hill-slope land above their residential area.

The court even awarded legal costs totalling RM300,000 in the residents’ favour.

The project involve 13 condominium blocks, three-storey bungalows and other structures over 81 acres, 43% of which comprises hill land above 250 feet above sea level with a gradient of over 25 degrees.

Such land, other than for “special projects”, was supposed to be preserved and gazetted under the Land Conservation Act 1960, according to the Penang Structure Plan.

The definition and guidelines for “special projects” were formulated in a working paper in 2009, two years after the Penang Structure Plan came into force.

Planning permission for the project was granted in 2012.

The residents took the matter to the Appeals Board, which set aside the permission in 2015.

The developer Sunway then filed a judicial review in the High Court and succeeded in quashing the Appeals Board’s decision.

But the residents appealed to the Court of Appeal, which however affirmed the High Court’s decision in favour of the developer.

The residents then appealed to the Federal Court – and won!

In an immediate reaction, Medalene Sim, one of those who spearheaded the residents’ challenge, said: “Praise the lord for having mercy and answers to our fervent prayers for a landmark victory.

“We have fought this legal battle for 10 years and thanks to all of you who have given us the encouragement and motivational support,” she said. “My tears of joy could not stop flowing. I could barely sleep last night for this day.

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“Thanks a million to our strong and knowledgeable legal team – Datuk Gurdial [Singh Nijar], Meena [Meenakshi Raman], Jess [Jessica Ram Binwani] and team for all the hard work put in to make a victorious landmark ruling to STOP all housing developments on sensitive hill land and preserve the green environment.”

In a summary judgment today, Federal Court judge Nallini Pathmanathan wrote: “This is a matter of significance because development on hillslopes is intrinsically related to sustainable development in the context of environmental law.”

She noted that the Pelan Dasar was to be used by the local authority to determine land use until a local plan was produced.

“However, no local plan was ever drawn up by the local authority despite the Penang Structure Plan 2020 being gazetted in June 2008 and the express provision of section 12 of the TCPA [Town and Country Planning Act], which envisaged that work on the local plan ought to commence before or soon after the Penang Structure Plan comes into effect.” (The local plan is still being finalised even today.)

Justice Nallini said it is within the jurisdiction of the court to consider the legality of the directive or guidelines issued by the State Planning Committee, as they are part of the process of granting approval. The State Planning Committee also had a duty to request advice from the National Physical Planning Council (NPPC) where the project involves “development affecting hill tops or hill slopes, in an area designated as environmentally sensitive in a development plan”.

Such development is no longer merely an issue of local or state governance, the judge said. “It is also a federal level and national issue” to ensure that development is well-balanced and to uphold “the principle that the public interest precedes private interest in the use and development of land”.

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Amendments were made throughout the TCPA to demonstrate the legislative intent for the statute to “play a more prominent and effective role in environmental protection”. Justice Nallini noted that a fundamental aspect of the statute is the inclusion of the element of public participation in the land planning process – in the drawing up of both the structure plan (which has legal status and is not just a statement of mere policy) and local plans.

“Issuing or relying on secret, unpublished guidelines to make decisions on granting or rejecting planning permission would be antithetical to the TCPA,” given the importance of public participation in the land planning process.

Exceptions to the structure plan provisions must be interpreted restrictively so as not to depart from the plan and its objective of conserving hill land and prohibiting development on it other than for public interest purposes and other exceptional circumstances.

However, the effect of the “special projects guidelines” was to deviate from the Penang Structure Plan and the NPCC blueprint. These guidelines were also issued in contravention of the TCPA as they were effectively a variation of the structure plan, which had been gazetted, the Justice Nallini pointed out. Any such variation should have gone through the process of public participation and awareness. So these guidelines are invalid.

The State Planning Committee cannot simply deviate from or amend the substance of the structure plan as this would be outside its statutory powers; neither can the committee delegate the matter to the local council to decide whether to approve the project.

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The 1996 Pelan Dasar itself cannot be treated as a local plan, as there was no public participation in the drafting and hence no public say in controlling development.

As for the developer, “possession of land title does not give the owner of the land a blank cheque to do whatever he or she pleases with the land. This would have the potential of allowing for unsustainable development outside the purview of the TPCA and the Land Conservation Act,” Justice Nallini said.

This landmark judgment is a stupendous achievement for environmental law by the judiciary, which has upheld the public interest. The three-person panel of judges comprised Chief Judge of Malaya Mohamad Zabidin Mohd Diah as chair and Federal Court judges Nallini and Rhodzariah Bujang.

It is also a triumph for people power – the residents’ group had limited financial resources to mount a legal challenge compared to the developer’s deep pockets – and civil society’s advocacy and struggle.

Brilliant! Congrats to the Sungai Ara residents, the amazing lawyers, the Penang Forum team, the Consumers Association of Penang, Sahabat Alam Malaysia and the independent judges. It shows us the value of perseverance in the struggle for justice even when all seems lost.

Well done, everyone who made this possible!

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.
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Paul Lim
Paul Lim
22 Jan 2023 3.15pm

Contrats to the Sungei Ara résidents! This should inspire other people to challenge also other developments of this kind nation-wide.

Gursharan Singh
Gursharan Singh
22 Jan 2023 11.39am

Congratulations. It took over a decade for the case to be decided.

Could there be other means to not to comply with this court decision especially as the project may be estimated in billions of RM and parties involved may include some in positions of power?

[Authorities should see the danger of hillsides development as happened in Joshimath Uttarakhand India which is at risk of sinking & 678 buildings unsafe & families shifted to safer locations. While locals blame human factors, natural calamities have also played their bit. It’s not only Joshimath facing danger of sinking but some other hill station towns are at risk. Infrastructure also destroyed. Internet]

Similar occurrances in other countries.

Bless all

Simon Tan
20 Jan 2023 10.54pm

Thanks to legal team and research by various NGOS for their ANTI UNSUSTAINABLE DEVELOPMENT stand

Wong Soak koon
20 Jan 2023 3.36pm

My heartfelt congratulations to these resilent, determined Sungai Ara residents. Yes, may this landmark judicial decision spearhead more judicial victories for environmental protection. Hidup Rakyat!