Bukit Relau: MPPP says ‘insufficient evidence’ … really?

The MPPP has come up with an unbelievable reason for being unable to act under the Town and Country Planning Act 1976 against the firm responsible for illegally clearing the Bukit Relau hill-top: the council says it has insufficient evidence.

Penang NGOs had wanted action to be taken under the Town and Country Planning Act, which carries a maximum fine of RM500000 and even allows for the imprisonment of the firm’s directors and other top officers.

Anyone can see that there has been a “material change” to the hill-top as part of “material development”. After all, the hill-top is already ‘botak’!

But incredulously, the MPPP does not think this constitutes sufficient evidence.

In a Malaysiakini report:

… MPPP president Patahiyah Ismail said in order to charge the company General Accomplishment, sufficient evidence must be present in the case.

She added that such evidence must fulfill “development terms” mentioned in the 1976 Town and Country Planning Act (TCPA).

“To enable action to be taken under Section 19 (1) of the TCPA, several ingredients in the charge need to be proven first.

“This involves construction, engineering, mining, industry, or any operation similar to those ‘in, on, over or under land’ or changes that have been done to any land or building,” she said.

“It could also include material change to the use of land under MPPP’s Planning Policy and Development Plan,” she added.

“If there are no material change or if there are yet to be any building, engineering works like ‘soil nailing, gunniting’ or other related engineering work, it would not be accurate to charge the developer under the TCPA,” she said.

The MPPP appears to be splitting hairs over its definition of what constitutes material development. Check out for yourself related provisions of the Town and Country Planning Act 1976:

26 Offences related to unauthorised development

(1) A person who, whether at his own instance or at the instance of another person-

(a) uses or permits to be used any land or building in contravention of section 18;

(b) commences, undertakes, or carries out, or permits to be commenced, undertaken, or carried out, any development in contravention of section 19 or 20;

etc.

commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both and, in the case of a continuing offence, to a further fine which may extend to five thousand ringgit for each day during which the offence continues after the first conviction for the offence.

(2) Unless the contrary is proved, the owner of the land in respect of which any act that constitutes an offence under subsection (1) is done shall be deemed to have permitted the doing of that act

19 Prohibition of development without planning permission

(1) No person, other than a local authority, shall commence, undertake, or carry out any development unless planning permission in respect of the development has been granted to him under section 22 or extended under subsection 24(3).

(2) Not withstanding subsection (1), no planning permission shall be necessary-

(a) for the carrying out of such works as are necessary for the maintenance, improvement, or other alteration of a building, being works that affect only the interior of the building and do not-

Etc…

(b) for the carrying out by any authority established by law to provide utilities of any works for the purpose of laying, inspecting, repairing, or renewing any drains, sewers, mains, pipes, cables, or other apparatus, or for the purpose of maintaining and repairing roads, including the breaking open of any road or ground for those purposes;

(c) for any excavation, including excavation of or for wells, made in the ordinary course of agricultural operations in areas zoned for agriculture;

(d) for the use of any land or building for a period not exceeding one month or such further period as the local planning authority may allow for purposes of-

(i) a temporary or mobile cinema, theatre, or show;

(ii) a temporary amusement park, fair, or exhibition; or

(iii) a temporary ceremony or festivity of a religious, social, or other character;

and for any development necessary to give effect to such use;

etc…

(g) for the making of such material change in the use of land or building as the State Authority may prescribe to be a material change for which no planning permission is necessary.

2 Interpretation

(1) In this Act, unless the context otherwise requires –

“development“ means the carrying out of any building, engineering, mining, industrial, or other similar operation in, on, over or under land, the making of any material change in the use of any land or building or any part thereof, or the subdivision or amalgamation of lands; and “develop” shall be construed accordingly;

Website contributor Michael adds:

What is quoted here from MPPP that there has been no material change is unbelievable. Stripping land of its forest covering is a material change or is this simply regarded as beautifying the hill, i.e adding value?

What the message being given here is to anyone concerned about this issue of destroying the natural landscape is to next time ‘wait and watch’ to catch the developer in the act of ‘soil nailing, gunniting, or other related engineering activity. That may mean waiting six months, twelve months … while the hillside slips into the valley and destroys much in its path. What nonsense.

It is clear that this 1976 Town and Planning Country Act needs to be updated by strengthening its criteria and penalties incurred, so as to give a clear message to developers who have no respect for laws that inhibits their wanton misbehaviour. Just the date, 1976 would indicate that it is archaic. In 1976, I very much doubt that there was any thought given to the idea that a developer would even want to build on such a slope or that it would appeal to people then.

What is going to happen to this piece of land? Do the current owners deserve to keep it? Have they indicated any sense of remorse for what they have done? Are they going to repair their damage so that the forest can grow back ….. or … are they just going to land-bank it for another twelve months or so, wait until all the publicity has died down, and then revert back to character and continue to build on it?