The Penang state government had said this would the “case of the century for planning law” in Malaysia but then the MBPP changed its stance in court. What happened? Read the residents’ statement below:
Several residents’ associations and organisations in Penang have come together in a show of support and solidarity for the Sungei Ara residents who are appealing the decision of the Penang High Court, delivered on 29 May 2017.
The High Court had ruled in favour of Sunway City and overturned the decision of the Penang Appeals Board, which had decided in favour of the residents in not granting planning permission for the Sunway Hills project.
The Sunway Hills project by Sunway City in Sungei Ara involves housing development on sensitive hill land – that is, land with more than 250 feet (76 metres) above sea level and a gradient exceeding 25 degrees.
Sunway proposes to construct 600 highrise apartments and bungalows on hill land covering 80 acres, approximately 43 per cent of which are on slopes exceeding a gradient of 25 degrees.
On 20 November 2015, the Appeals Board upheld the objections by the residents who were owners of neighbouring lands against the approval of the project by the Majlis Bandaraya Pulau Pinang (MBPP).
Sunway City had argued that the MBPP had granted planning permission properly because the proposed development is a ‘special project.’ The residents argued that the sensitive hill land is unsuitable for the development proposed.
The Appeals Board ruled that the MBPP was wrong in granting the approval as it had failed to consider properly that (in this case), the primary objective of the Penang Structure Plan 2020 is to preserve hill lands; and only very limited and justifiable exceptions were allowed as ‘special projects’, the justification for which was lacking in the Sunway project.
Following the decision of the Appeals Board, Penang Chief Minister Lim Guan Eng had on 26 February 2016 at a press conference announced that the MBPP could now overturn the approvals given to similar hill slope special projects approved by the previous Barisan Nasional government. The legal adviser of MBPP, Puan Shamiah, and also YB Jagdeep Singh Deo, a state exco member and town and country planning committee chairman, were also at this press conference.
The National Human Rights Society (Hakam) and Penang Forum, who were invited to attend the press conference, applauded the State government’s support for the Appeals Board decision as it best served the public interest and sustainable development.
The Penang Structure Plan 2020 was gazetted in 2007 and states that the exception to the prohibition on hill land development is only for ‘special projects’ – but it does not define what they are.
The definition and the guidelines for ‘special projects’ were approved by the present government in 2009. How the guidelines are to be interpreted is the bone of contention in the Sungei Ara residents case.
Following the clarification provided by the Appeals Board in the Sunway case, the expectation was that the state government would have revised or redefined what are ‘special projects’ in the 2009 guidelines to prohibit future private development on hill lands.
We are therefore surprised that at the hearing at the Penang High Court, the counsel for MBPP took a different stance from that publicly announced by the chief minister.
The Sungei Ara residents were disappointed that the lawyers for the MBPP argued against the clarity of the definition provided by the Appeals Board as regards ‘special projects’.
We are indeed intrigued as to the change of stance by the MBPP and would like to enquire what stance the state government and MBPP will now take before the Court of Appeal when the residents seek to restore the Appeals Board decision.
We are supporting the appeal against the High Court decision, as it has serious implications not only for the immediate residents of the vicinity of the project but also for all citizens of Penang who will be affected by development projects in environmentally sensitive areas, including on hillslopes and highlands in Penang.
The decision will also have serious implications for all cases involving planning law in the country.
The High Court, in ruling in favour of Sunway City, had among other things, held the project to be a ‘special project,’ and hence an exception to the Penang Structure Plan.
The judge in the case had also suggested that the Penang Structure Plan “need not be slavishly complied” with by the MBPP.
These are serious matters of public interest which must be reviewed by the Court of Appeal. The High Court decision must not serve as a precedent for other development projects on hill lands and environmentally sensitive areas.
Consequently, the Sungei Ara residents have filed a notice of appeal against the decision – and we stand in solidarity with them in their appeal.
The chief minister in the press conference last year, acknowledged that the High Court case “is expected to be the case of the century for planning law in Malaysia”, and had blamed the previous government for approving projects on sensitive hill lands.
Given the above, we call for the following actions to be taken urgently:
- It is vital for the chief minister and the MBPP to make clear their position as regards the appeal by the residents to restore the Appeals Board decision;
- The state government revise or redefine what are ‘special projects’ in the 2009 guidelines in order to explicitly prohibit any future development on hill land except for essential public amenities, pending a revision of the new Structure Plan.
- Since the present Structure Plan is now pending revision, the state should also ensure the explicit prohibition of any future development on hill land except for essential public amenities.
- The state should also stop approving any further applications for excision of the status of ‘hill land’ from the Land Conservation Act 1960.
These matters are of great importance to all citizens of Penang. We also call on the public to support the Sungei Ara residents in this very critical public interest case.
Today it is Sungei Ara, tomorrow it could be Paya Terubong, and the next day it might be at your backyard; hence the need to defend the front line.
Development on sensitive hill land of more than 250 feet should not be allowed, as it poses serious environmental and social impacts for residents in neighbouring land such as soil erosion, landslides and landslips, and unstable soils and negative impacts from blasting works.
These are the precise concerns of the Sungei Ara residents that are also faced presently by other residents in Paya Terubong, and Jesselton Heights.
We laud their courage and spirit in spearheading this appeal to the Court of Appeal despite the financial challenges they are facing.
Their struggle in the public interest should be supported for a better environment and a better Penang!
For those who wish to support the efforts of the Sungei Ara residents, kindly contact Mr Manuel Nicholas (mobile h/p :012 4899321; email: [email protected]).
This statement is endorsed by:
1. Meenakshi Raman, Tanjung Bungah Residents Association (TBRA)
2. Manuel Nicholas, Management Corporation Sunrise Garden Condominium, Sungai Ara
3. Medalene Sim, Management Committee Solok Kelicap, Sungai Ara
4. Tan Sri Gajaraj Dhanarajan, Management Corporation of The Cove, Tanjung Bungah
5. Dr Ti Lian Geh, Taman Sri Rambai /Taman Lau Geok Swee RA, Paya Terubong
6. Jeffery Ho, Taman Sri Nibong Residents Association, Bayan Lepas
7. Abdul Rahim bin Sultan, Management Corporation of Desaria Sri Merpati Apartments, Taman Desaria, Sungai Ara
8. Ang Sue Khoo, Pykett Residents’ Committee
9. K. Suthakar, Tanjung Court Residents’ Ad hoc Committee and Joint Residents Associations of Bandar Baru Air Itam Ad hoc Committee
10. Henry Loh, Management Corporation of Diamond Villa, Tanjung Bungah
11. Alan Tan, Management Committee of Lavinia Apartment, Bayan Lepas
12. Abdul Razak Bin Osman, Management Corporation Taman Sri Putera, Taman Desaria, Sungai Ara
13. Haji Fadzil Bin Hitam, Desaria Residents Association, Sungai Ara
14. Andy Saw, Management Corporation Regency Heights Condominium, Taman Desaria, Sungai Ara
15. Hor Cheok Weng, Management Committee of Mewar Apartments, Sungai Ara
16. S Subbiah Residents’ Association of Pantai Molek, Tanjung Tokong
17. Datuk Yap Ching Chau, Residents’ Association of Jesselton, Penang