GEORGE TOWN: A recent landmark decision by the Federal Court halting a proposed hillslope development in Sungai Ara in Penang “expressly binds” all state and local authorities to ensure full compliance with federal legislation, says a lawyers group.
Rajesh Nagarajan of Lawyers for Environmental Rights said state and local authorities are now prohibited from using “unethical or inequitable backdoor mechanisms” to approve unsafe developments.
These include classifying such developments as “special projects”.
On Jan 20, a group of residents in Sungai Ara won their final appeal to challenge the Penang island city council’s (MBPP) decision granting planning permission for developer Sunway City (Penang) Sdn Bhd to build a housing scheme on a hillslope.
Justice Nallini Pathmanathan, who delivered the apex court’s unanimous decision, ruled that control of developments affecting hilltops and hillslopes was not merely a matter for local state governance, but a national issue.
She said state authorities, when approving a development project, must ensure that it also conforms to the structure plan drawn up under Section 15(5) of the Town and Country Planning Act 1976 (TCPA).
Nalini said any inconsistency between a local plan and a structure plan which is not resolved in accordance with the TCPA would render the planning permission granted liable to be struck down as ultra vires the federal law and, therefore, void.
Welcoming the ruling, Rajesh said ordinary citizens affected by such developments can “wield this decision as a weapon” to strike down planning approvals detrimental to the public and the environment.
“We hope to see more lawsuits filed to prevent and protect hillslopes from being developed into condominiums and housing estates,” he told FMT.
Rajesh added that the court ruling means state bodies and local councils can no longer approve development projects solely on the basis that they comply with state laws.
Likewise, developers are also duty-bound to ensure their development projects comply fully with the TCPA, he added.
Meenakshi Raman, one of the lawyers who represented the affected Sungai Ara residents, said states and local councils faced with applications for planning permission involving hilltops and hillslopes will now have to pay heed to the court decision.
She said the apex court has made clear that state planning committees (SPCs) and local councils must comply with the TCPA to avoid having their approvals struck down by the courts.
“(The Federal Court) has made clear that structure plans are legally binding and cannot be ignored.
“The court has also emphasised the importance of public participation and engagement in the planning process. Planning authorities must pay heed to this and not simply regard it as a token process,” she added.