Fishermen and green groups file action against Penang’s mega-reclamation project

Seven fishermen led by Zakaria Ismail, together with Sahabat Alam Malaysia (SAM) and Jaringan Ekologi dan Iklim (Jedi), filed an application for a judicial review at the Penang High Court on 29 December.

They are challenging the planning permission given by the Penang state director of town and country (PlanMalaysia) planning on 21 August 2023 for the “Penang South Reclamation” (PSR) project.

The nine applicants are suing the director (first respondent), the Penang state planning committee (second respondent), the Penang state government (third respondent) and SRS Consortium Sdn Bhd (4^th respondent).

The first applicant, Zakaria Ismail, is bringing the action on behalf of the fishermen living or conducting fishing activities off the coast of Penang Island adversely affected by the PSR project.

On 5 February 2024, the Penang High Court granted leave to the applicants to proceed with the judicial review application.

In the application for judicial review, among others, the applicants have requests:

• a declaration that the grant of planning permission by PlanMalaysia on 21 August 2023 is void and of no effect as it violates the provisions of the Town and Country Planning Act 1976 (TCPA)
• an order of certiorari to quash the decision granting the planning permission to the Penang state government to commence reclamation work for the PSR project in the Southwest district of Penang
• an order that the Penang state government and SRS immediately restore all or any damage to the area in which reclamation work has commenced or completed for island A or the PSR project, to its original and pristine state as it was prior to the start of the said reclamation work
• an order that the respondents pay damages to the applicants and all fishermen represented by the applicants in relation to the loss of their income, which is to be assessed by the court

Besides the above, the applicants are also seeking an order that the planning permission granted for the PSR project and all other processes and reclamation work are stayed pending the final disposal of this judicial review application and costs. The project impacts are already being seen and felt by the fishermen in this case.

The stay application will be heard once the court fixes a date during the forthcoming case management fixed on 19 February.

The following is a summary of the grounds for the judicial review application:

• the respondents failed to comply with a number of provisions in the TCPA including:
  • obtaining the advice of the National Physical Planning Council (NPPC) prior to the approval of the draft Structure Plan 2030 by the Penang state planning committee and
  • seeking the advice of the NPPC when the application for planning permission was submitted by the Penang state government
• the respondents committed a serious error of law when the PSR masterplan was referred to the NPPC for advice and directions under the TCPA when the draft Structure Plan 2030 had not yet come into effect, and the structure plan in force then was the Structure Plan 2020. The Structure Plan 2020 did not provide for the PSR project in the area concerned
• the respondents failed to undertake the process for the alteration or amendment of the Structure Plan 2030 to reflect the scaling down of the PSR project from three islands to one island, and this deprived the applicants from having an opportunity to provide feedback and objections as provided for under the TCPA
• there was no completed environmental impact assessment report for the PSR project at the time the planning permission was granted by PlanMalaysia Penang because the assessment process under the Environmental Quality Act 1974 (EQA) includes the right of statutory appeal. This had not yet been exhausted due to the delay and inaction by the Appeals Board established under the EQA*
• the many adverse environmental and social impacts of the project and irretrievable destruction to the livelihood of the fishermen in the area were not taken into account adequately or at all by the director general of the Department of Environment in approving the impact assessment report and/or by PlanMalaysia Penang in granting planning permission

* The fishermen had filed an appeal with the Appeals Board in May 2023 to challenge the decision of the director general of the Department of Environment in approving the impact assessment report in April 2023. To date, the Appeals Board has yet to set a date for the hearing of the appeal.

Mageswari Sangaralingam, setiausaha kehormat, Sahabat Alam Malaysia
Khoo Salma Nasution, president, Jaringan Ekologi Dan Iklim (Jedi)
Zakaria Ismail, head, Sungai Batu fishermen’s unit
Ibrahim Che Rose, Teluk Tempoyak fishermen’s unit
Azhar Najamudin, Sungai Batu fishermen’s unit
Mohd Ismail Ahmad, Sungai Batu fishermen’s unit
Mohd Shahril Rosli, Sungai Batu fishermen’s unit
Omar Hassan, Sungai Batu fishermen’s unit
Ramdzan Ishak, Sungai Batu fishermen’s unit

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