Nine applicants led by Zakaria Ismail and six other fishermen, along with Sahabat Alam Malaysia (SAM) and Jaringan Ekologi dan Iklim (Jedi), are dismayed and disappointed with the decision of the Penang High Court in dismissing their application for a judicial review to challenge the planning permission granted to the Penang state government by the State Town and Country Planning Department.
The judicial review application was dismissed with no order as to costs.
In their submissions to court, the applicants raised the following:
- that the respondents failed to comply with the Town and Country Planning Act 1976 (TCPA) including,
- failure to obtain the advice of the National Physical Planning Council prior to the approval of the 2030 draft structure plan by the Penang state planning committee and
- failure to seek the advice of the National Physical Planning Council when the application for planning permission was submitted by the Penang state government
- that the respondents committed a serious error of law when the “Penang South Reclamation” masterplan was referred to the National Physical Planning Council for advice and directions under the TCPA when the 2030 draft structure plan had not yet come into legal effect, and the structure plan in force then was the 2020 structure plan 2020. The 2020 structure plan did not provide for the Penang South Reclamation project in the area concerned
- that the respondents failed to undertake the process for the alteration and/or amendment of the 2030 Penang structure plan to reflect the scaling down of the Penang South Reclamation 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
- that there was no completed environmental impact assessment report for the Penang South Reclamation project at the time the planning permission was granted by PlanMalaysia Penang because the impact assessment process under the Environmental Quality Act 1974 (EQA) includes the right of statutory appeal. This had not yet been exhausted due to delay and inaction by the Appeals Board established under the EQA
- that the many adverse environmental and social impacts of the project, and irretrievable destruction to the livelihood of the fishermen in the area (which was recorded in the environmental impact assessment report) were not taken into account adequately, or at all, by PlanMalaysia Penang in granting planning permission
- that the first to the third respondents committed breaches of fiduciary duty and public trust in the grant of planning permission for the Penang South Reclamation project
Despite lengthy submissions by the applicants on the respondents’ non-compliance with the TCPA at various stages of the planning process, the High Court found in favour of the respondents.
The High Court dismissed the judicial review application, stating among other things, that the application was filed out of time and the respondents had complied with the TCPA and therefore, there was no illegality, irrationality or unreasonableness in the decision-making process in the grant of the planning permission.
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The High Court also agreed with the respondents’ submission that there was no need to review and alter the 2030 Penang structure plan on the downsizing of the Penang South Reclamation project since islands B and C were merely shelved and not abandoned.
Despite the clear and unambiguous public representations by the Penang state government that islands B and C would no longer be implemented, it was revealed during the exchange of affidavits in these proceedings that the state government had actually merely ‘shelved’ islands B and C temporarily and had not limited the Penang South Reclamation project to only island A.
While expressing their respect for the decision of the court today, the applicants who are mainly fishermen affected by the project feel dejected that their pleas and complaints have been ignored and their rights disregarded.
According to the environmental impact assessment report, the Penang South Reclamation project will cause permanent and irreversible loss to the ecosystem. Apart from this, the lives and livelihoods of the coastal fishermen in the southern part of Penang will also be adversely affected.
The applicants will file an appeal against this decision in due course. – SAM/Jedi
Mageswari Sangaralingam is honorary secretary of Sahabat Alam Malaysia (SAM). Khoo Salma Nasution is president of Jaringan Ekologi dan Iklim (Jedi).
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