Penang govt misleading public on appellate court’s reclamation ruling

From S Mageswari

Sahabat Alam Malaysia refers to the Court of Appeal’s decision on June 30 concerning the Penang South Reclamation (PSR) project and the state government’s response yesterday.

The following is an excerpt from the Court of Appeal judgment, Paragraph 49, page 58:

“…we dismiss this appeal and affirm the High Court’s decision on either one or both of the following grounds:

(1) The first and/or second respondents (Penang town and country planning director and Penang planning committee) had no power to grant the planning permission for reclamation; and/or

“(2) The judicial review application had been filed beyond the three-month time period and there was no ‘good reason’ for the court’s extension of time to be granted.”

We stress that there has been no misrepresentation of the decision and deeply regret the Penang government’s characterisation that this has been the case.

For the record, on Dec 29, seven fishermen led by Zakaria Ismail filed a judicial review at the Penang High Court. The case challenged the planning permission given for the PSR project on Aug 21, 2023, by the Penang town and country planning director, following the Penang planning committee’s approval.

The case raised serious concerns that the project was pushed through without following statutory planning procedures under the Town and Country Planning Act 1976 (Act 172).

This included, among others, the state planning committee’s failure to consult the National Physical Planning Council (NPPC) prior to the granting of planning permission by the Penang town and country planning director.

On July 11, 2024, the High Court dismissed the case mainly on the basis that the judicial review was filed out of time, and that the planning permission for the reclamation project was said to have been properly issued in accordance with the Act 172.

We appealed to the Court of Appeal in this regard. On June 30, the Court of Appeal dismissed the appeal but gave a very different reasoning from the High Court.

The Court of Appeal clearly stated that the state planning authorities had no power to grant planning permission for the reclamation works. This is because according to the Court of Appeal, the seabed and territorial waters fall under the federal government’s jurisdiction until the reclamation is complete.

This clearly contradicts the decision of the High Court. The High Court held that the approval given was lawful, but the Court of Appeal held that the authority approving the planning permission had no power to do so.

The only point both courts agreed on was that the case was filed out of time.

The Penang government’s response is thus misleading and an attempt to confuse the public about what was actually decided.

The Court of Appeal did not say that planning permission was not needed for the PSR project, as claimed by the Penang government.

Neither did the Court of Appeal refer to the approval of the Penang State Structure Plan or the NPPC in deciding the question of jurisdiction to grant planning permission for reclamation carried out in federal waters.

Thus, in view of the Court of Appeal’s finding that the Penang town and country planning director and state planning committee had no authority to grant planning approval, there is in fact no valid planning permission for the PSR project.

The project therefore should not proceed, and we urge the federal government to step in urgently to resolve this matter and ensure that the laws and procedures are complied with.

S Mageswari is honorary secretary of Sahabat Alam Malaysia.

The views expressed are those of the writer and do not necessarily reflect those of FMT.