‘Special projects’ on hills: Penang Forum vindicated

Penang Forum’s position against special projects on the hills of Penang, put forward by prominent lawyer Agatha Foo, has been vindicated in recent weeks by three developments. [Basically, Penang Forum said that the Penang state government had come up with guidelines in 2009 that interpreted too broadly the term special projects contained in the Penang Structure Plan, gazetted in 2007. The Structure Plan prohibits development on hill land more than 250 feet above sea level, allowing only “limited development” for special projects under exceptional circumstances.]

1. A decision by the Appeals Board, chaired by Yeo Yang Poh, in favour of the residents of Sungai Ara, who had appealed against the MBPP’s approval of developer Sunway’s ‘special project’ on a hill in their vicinity.
2. An article by University of Malaya law professor Gurdial Singh Nijar which affirmed the Appeals Board decision and Penang Forum’s position on special projects.
3. A statement by the Human Rights Society of Malaysia (Hakam), issued by Ambiga Sreenevasan and Gurdial Singh, supporting Penang Forum’s position and the Appeals Board decision on special projects.

The ball is now in the Penang state government’s court. As Hakam says, “the government is now presented with an excellent opportunity and basis to implement, and if necessary defend, the Appeals Board’s decision in the public interest”. No more talk of having to pay “hundreds of millions in compensation”, please.

Items 2 and 3 above are reproduced below:

Gurdial Singh’s article on special projects: Hill lands and development

The Penang government has been plagued by accusations that the city council is willy-nilly granting approvals to developers to build on vulnerable hill lands –that is, land 76m above sea level and with a steep slope exceeding 25 degrees described by the Penang Structure Plan 2020 (in effect since 2007).

Despite the fact that strict controls are required and development prohibited, developers have been getting approvals. On the basis of an exception which allows “limited development” for “special projects”.

Those who opposed the approvals have been publicly admonished, even vilified as stooges of opposing political parties.

Now the Appeal Board – which decides objections for the grant of such approvals – has laid the matter to rest.

It ruled recently that the council was wrong in granting approvals to a developer, Sunway City, for 630 dwelling places some in multi-storied condominiums on such a hill land.

The decision upholds citizens’ rights, ecological integrity and safety. It balances rather delicately the fundamental values of societies with the desire by developers to construct houses in salubrious hill surroundings in expectation of higher prices and profits. In short – it restores the “people before profits” ethos.

The lucid reasoning of the board makes clear that the proposed housing development could not be a “special project” under guidelines established to clarify “special projects”.

According to these guidelines, to qualify as a special project, there must be approval of an application for the change of land use to housing before the adoption of the Structure Plan in 2007. But the Sunway City developer applied way after the structure plan came into effect – only in March 2011. The approval was in February 2012.

Sunway also argued that its project qualified as a special project under the 2009 guidelines because it was zoned for housing development.

This, said the board, was irrelevant. The zoning did not dispense with the need to get approval of the change of the land use to housing under the structure plan before 2007.

Further “limited development” was allowed. But a project to build 600 dwellings in multi-storied condominiums – between five and 16 storeys in some cases – could hardly qualify as such, said the board.

Finally, the council could not by itself decide that this was a special project. The discretion was given to the State Planning Committee.

Its approval was necessary. The council could not say that it was delegated the power to decide. Because this could only apply to cases of necessity and such like circumstances.

This decision is in line with – and vindicates – the position that civil society had been advocating all along. So the admonishment by authority on high must be a matter of regret.

Now at long last the controversy surrounding hill lands development approvals can be laid to rest. A victory for the ordinary citizen vis-à-vis developers. And opportunity for the state to advance the public interest.

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Hakam statement: On Penang chief minister’s statement regarding Penang Forum

We refer to the remarks made at the recent press conference by the Penang Chief Minister (CM) on 13 December 2015, a day after a public forum organised by the Penang Forum on hill development. These related to the approval of development projects on sensitive hill land – 250 feet above sea level and/or with a slope of greater than 25 degrees. Development is prohibited on such vulnerable land except for “limited development for special projects”.

The CM at this press conference said that the development was approved by the previous BN government and that it had not approved any such development. Second that comments should be based on facts. He then went on to say that this credible NGO “has fallen into the misinformation trap set up by the BN and some media who are anti-government”.

The Penang Forum’s information relating to development on sensitive hill land between 2008 and 2015 was provided by the State Government Exco to the Adun at the State Assembly. The recent decision of the Appeals Board – which deals with objections by land owners in respect of approval of development projects – also confirms that planning permission for such development was given during the tenure of the present government. In this case, the application was made by a developer on March 2011 and approved in February 2012 for condominium development on sensitive hill land in Sungai Ara. That explains the Penang Forum addressing these concerns to the present State government. Secondly, the Board set aside this approval as it was flawed. It was neither a ‘special project’ nor a ‘limited development’.

The Penang Forum has been vindicated. Their grounds have been largely accepted by the Board. We note that the State government approved some 55 blocks of high rise development on delicate hill lands between 2008 and 2015.

With the benefit of hindsight we are sure that the Penang Government now realises that they should not so readily malign civil society, howsoever obliquely – for the legitimate and well-founded articulation of matters of great concern to civil society.

For this undermines the fundamental values of a functioning democracy and fundamental human rights of the populace at large.

The government is now presented with an excellent opportunity and basis to implement, and if necessary defend, the Appeals Board’s decision in the public interest. We urge them to do so.

Issued on behalf of the Hakam Executive Committee by

Prof. Gurdial Singh Nijar
Vice-President, Hakam
&
Datuk Ambiga Sreenevasan
President, Hakam