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Federal Court’s landmark Sungai Ara judgment provides a firm foundation to build on environmental law

This legal outcome also shows what a small band of ordinary people can do given unity of purpose and an unflinching commitment to the cause.

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Aliran hails the Federal Court’s decision to block a project to build 13 condominium blocks and three-storey bungalows on 81 acres of sensitive hill land in Penang.

About 43% of this plot lies more than 76 metres above sea level on slopes with a gradient of above 25 degrees.

In a landmark summary judgment, Justice Nallini Pathmanathan spelt out the reasons for rejecting the project. Underscoring her arguments were several themes that would be highly relevant to other controversial projects.

These include the intent of the amendments throughout the Town and Country Planning Act 1976 to uphold environmental protection and public participation in land use planning.

This is a leap forward in our understanding of environmental law, especially in the planning and approval process for development projects.

In this case, the issue arose when the local council approved the housing project, in line with zoning under a 1996 Pelan Dasar (for which there was no public participation). This was pursuant to a directive from the state planning committee, chaired by the then chief minister.

The state planning committee then “deliberately excluded itself from the planning approval process, vide its direction to the local authority that no further reference to the Committee is needed where the local authority decides that an application falls under ‘special projects'”.

This led to an approval process that excluded the committee, and, in effect, excluded the role of the National Physical Planning Council (NPPC).

But the judge said state planning committees have a duty to request advice from the NPPC where the project involves “development affecting hill tops or hill slopes, in an area designated as environmentally sensitive in a development plan”.

READ MORE:  Sungai Ara hillside development quashed: Major win for environmental law

Such development is no longer merely an issue of local or state governance, the judge said. “It is also a federal level and national issue” to ensure that development is well-balanced and to uphold “the principle that the public interest precedes private interest in the use and development of land”.

This principle articulated by the highest court in the land is music to the ears of all those concerned about unbridled development that goes against the public interest.

The judgment also recognised that a state structure plan is legally enforceable and not just a mere set of guidelines. The state planning committee cannot simply deviate from the state structure plan substantively, nor can the committee delegate the approvals for any deviation to local councils.

Justice Nallini said amendments were made throughout the Town and Country Planning Act 1976 (TPCA) to demonstrate the legislative intent for the statute to “play a more prominent and effective role in environmental protection”.

A fundamental aspect of the statute is the inclusion of the element of public participation in the land planning process – in the drawing up of both the structure plan and local plans.

Issuing or relying on secret, unpublished guidelines (like the “special projects guidelines”) to make decisions on granting or rejecting planning permission would be antithetical to the TCPA, given the importance of public participation in the land planning process, she noted.

Aliran believes real meaning must be given to public participation rather than cursory, half-hearted attempts at engaging with the public when key decisions are already a fait accompli, decided in political backrooms.

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As for the land owners, the “possession of land title does not give the owner of the land a blank cheque to do whatever he or she pleases with the land. This would have the potential of allowing for unsustainable development outside the purview of the TPCA and the Land Conservation Act,” Justice Nallini said.

Aliran congratulates the Federal Court judges for this landmark judgment. It just goes to show how crucial it to have a judiciary that operates without fear or favour. An independent judiciary is the last resort of the ordinary people.

We salute the Sungai Ara residents and lawyers Gurdial Singh Nijar, Meenakshi Raman, Jessica Ram Binwani and Abraham Au for their perseverance and untiring efforts in this David vs Goliath battle.

We applaud Penang Forum groups, the Consumers Association of Penang and Sahabat Alam Malaysia for their unwavering support for what at many points looked like a lost cause.

This legal outcome shows what a small band of ordinary people can do given unity of purpose and an unflinching commitment to the cause.

Aliran executive committee
20 January 2023

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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Vincent Chan
Vincent Chan
22 Jan 2023 4.24am

This is basic law-before approvals are made you must comply with the law. Nothing novel or unique here. It is trite-one must follow the law of the land. But what is good is unlike Bakun Dam case, which was a political decision -the court refused to say that the Environmental Impact Statement cannot exclude public participation. No need to salute the Judge -she is complying with the law.

Simon Tan
20 Jan 2023 10.55pm

Congrats to legal team and research by various NGOS for their ANTI UNSUSTAINABLE DEVELOPMENT stand

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