Apex Court quashes planning permission for housing development on hillslope in Penang

PUTRAJAYA: Residents of a condominium in Sungai Ara, Penang today won their appeal to quash the Penang Island City Council (MBPP)’s decision to grant planning permission to a property developer to build a housing scheme on a hillslope.

The unanimous decision was delivered online by the Federal Court’s three-member bench comprising the newly appointed Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah and Federal Court judges Datuk Nallini Pathmanathan and Datuk Rhodzariah Bujang.

Justice Nallini, who delivered the court’s decision, held that the local authority’s approval for planning permission to be given to the developer and owner of the land, Sunway City (Penang) Sdn Bhd was ultra vires and void.

“The High Court and Court of Appeal erred in law in upholding the decision of the local authority to grant planning approval,” she said.

The court also ordered Sunway City and MBPP to pay a total cost of RM300,000 to the residents of the Sunrise Garden condominium.

Justice Nallini said under Section 22 (2A) (c) of the Town and Country Planning Act (TCPA) 1976, the state planning committee, in considering an application for planning permission, is under a duty to request advice from the National Physical Planning Council (NPPC) when the application involved development affecting hillslopes in areas designated as environmentally sensitive in a development plan.

She said development affecting hillslopes was no longer merely an issue of local or state governance but was also a federal and national issue.

As such, she said the local authority as the entity responsible for the issuance of planning approval has a duty to comply with the provisions of the TCPA.

MBPP approved Sunway City’s application on Feb 21, 2012, for planning permission to build 600 units of housing including 13 blocks of condominiums and three-storey bungalows on 80.89 acres of land, of which 43 per cent comprises hill land.

The land stood at an elevation of more than 76 meters above sea level with a gradient exceeding 25 degrees.

The residents appealed to the Penang Appeal Board and on Nov 20, 2015, and the board set aside the planning permission granted to Sunway City.

Sunway City, then filed a judicial review in the High Court in Penang, naming the Appeal board, MBPP and the residents as respondents.

On May 29, 2017, the High Court ruled in favour of the developer and quashed the Appeals Board’s decision.

The residents then appealed to the Court of Appeal but were unsuccessful in their appeal which was rejected on May 7, 2021, prompting them to bring the matter to the Federal Court.

In today’s proceedings, a team of lawyers led by Datuk Dr Gurdial Singh Nijar represented the residents while lawyer Christina Siew for Sunway City and counsel Karin Lim Ai Ching for MBPP. – Bernama

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