GEORGE TOWN – Civil society activists have hailed a landmark Federal Court ruling to quash a decision by Penang Island City Council (MBPP) that granted planning permission to a developer for a housing scheme on a hill slope in Sg Ara, Penang.
Federal Court justice Datuk Nallini Pathmanathan, who sat with Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah and Federal Court justice Datuk Rhodzariah Bujang, ruled that the planning permission was ultra vires or beyond the powers provided under the Town and Country Planning Act 1976, hence it was unsuitable for consideration.
“The high court and Court of Appeal erred in law in upholding the (previous) decision of the local authority to grant planning approval,” she said when delivering the apex court’s verdict yesterday.
Nallini mentioned that the court noted the lack of public participation in the process of awarding approval to the developer.
Aliran president Anil Netto hailed it as a stunning victory, saying that the fact that the court even awarded damages to the plaintiff shows that the courts recognise the empowerment of the people’s voice.
For once, David has triumphed over Goliath,” he said.
“This landmark judgment is a stupendous achievement for environmental law by the judiciary, which has upheld the public interest,” he added.
“It is also a triumph for people power and civil society’s advocacy and struggle.”
He congratulated the Sg Ara residents, the legal team, the Penang Forum team, the Consumers’ Association of Penang, and Sahabat Alam Malaysia.
“It shows us the value of perseverance in the struggle for justice even when all seems lost,” he said.
Medalene Sim, one of those who spearheaded the residents’ challenge, reportedly 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 thank you to those who have given us encouragement and motivational support,” she said.
My tears of joy could not stop flowing. I could barely sleep last night.”
Residents near other risky projects spurred on
Lim Mah Hui, a former MBPP councillor who was appointed as a non-governmental organisation representative, said that laymen would be emboldened by the court’s decision.
“It is a landmark (ruling), no doubt. The judges mentioned no less than five times that any development must take into account the public participants,” he said, stressing that it is necessary to reach out to stakeholders.
Whenever a mammoth project is carried out, it is important to win over the stakeholders by adhering to the needs of sustainable development and caring for the environment, he said.
Lim said that residents who live in fear of other megaprojects may be inspired to take up the challenge of fighting the big developers.
Penang Hills Watch activist Kam Suan Pheng encouraged people who observe hillside clearing to highlight such cases so that the group can compile information and refer to the authorities.
“We do not know if it (such a project) is legal or illegal. But we need the public’s cooperation in fighting excess hillslope development. And we will refer to MBPP. Together with them, we must safeguard our hills from environmental degradation.”
The authorities must now also take into account incremental weather challenges which can aggravate soil, especially at hill slopes, she stressed.
The apex court judgment is a holistic one. It is right. It is also not about siding with whoever. The court made a pertinent point about the approval process for planning, which must be in sync with laws related to planning.”
The authorities are obligated to safeguard the environment and the law – this is what the judgment is essentially all about, said Kam.
On high elevation and steep gradient
The legal fight put up by nearby residents that first began in 2012 saw their steely determination to object to the hillslope development – which if executed would overshadow their neighbourhood of mostly landed properties.
They filed an appeal over whether the Penang Structure Plan 2020 regulates development on hill slopes 76.2m above sea level with a gradient that exceeds 25°, and the Federal Court agreed with them that it did not.
The court also awarded RM300,000 in costs to the group as the plaintiffs.
Gurdial Singh Nijar, Jessica Binwani, and Abraham Au represented the residents. They were assisted by Meenakshi Raman.
Senior counsels Datuk Cyrus Das and Christina Siew appeared for the developer Sunway City (Penang) Sdn Bhd while Karin Lim and M. Murugan represented MBPP.
The project involved 13 condominium blocks, three-storey bungalows, and other structures over the disputed 32.7-ha land, 43% of which was hill land more than 76m above sea level with a gradient of over 25°.
Both Penang Island mayor and MBPP president Datuk Yew Tung Seang and state Housing, Local Government, Town, and Country Planning executive councillor Jagdeep Singh Deo could not be reached for comment. – The Vibes, January 21, 2023
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