The Federal Court’s recent ruling which buried Sunway City (Penang)’s Sdn Bhd’s plans for 600 units of high-rise apartments and bungalows in a hilly area in Sungai Ara, Penang, breathes fresh hope to similar public interest litigations nationwide.
Of particular significance is the stature of the corporation which has been ruled against, a signal perhaps of our judiciary moving towards more contemporary interpretations of the law through the lens of sustainable development.
A key factor in the Sungai Ara litigants’ victory was the land’s original status as gazetted hill land.
The Land Conservation Act 1960 (LCA) is Federal law adopted by all peninsular states, any of whom could, under this law, gazette hill land per criteria of its own choosing, for the broad objective of ensuring ‘conservation of hill land and the protection of soil from erosion and the inroad of silt’.
But only Penang did so. For every other state in the peninsular, the LCA is seen as a ‘lame duck’ law.
In Kuala Lumpur, the Taman Tun Dr Ismail residents’ much-celebrated victory at the Court of Appeal in 2021, against a plan to build an RM3 billion mixed development reaching 50 storeys high on Taman Rimba Kiara, was founded largely upon the primacy of a structure plan when a local plan is not yet in place. The Taman Tun Dr Ismail case is however, pending a final apex court ruling.
The Sungai Ara judgment has many commonalities with Taman Rimba Kiara. Of particular interest is the references to Penang Island City Council’s ungazetted ‘pelan dasar’ (policy plan) and how it was used against public interest, counter to the intents of the structure plan.
A few years ago, I wrote about issues surrounding what is, in effect, Kuala Lumpur’s ‘pelan dasar’.
Kuala Lumpur’s Comprehensive Development Plan (CDP) of 1970 had a minor edge over Penang’s – the rubber stamp of a gazette. But the law back then granted zero opportunity for any public participation, hence essentially still a policy solely of the local authority’s un-transparent making.
These policy plans were rescinded as a consequence of the gazetting of the Kuala Lumpur City Plan (KLCP 2020) on Oct 30, 2018. However, many contentious developments had already been approved prior to the gazettement, with the CDP affecting these to varying degrees.
In many instances too, the CDP and its addendums would have supported the public’s fight against planning malfeasance, but for the near-impossibility of obtaining them – in itself raising concerns over possible ‘tweaking’.
Unlike Penang which has never had a gazetted local plan, Kuala Lumpur now has one – KLCP 2020.
Penang’s dubious development approvals will no doubt show up here, there, and everywhere, to the earnest researcher.
Whereas in Kuala Lumpur, we now have a compendium listing them (questionable development orders before October 2018) all in one place under the KLCP 2020.
There is an ongoing legal challenge to the validity of the KLCP 2020 – which is another story in its own right.
It should be noted that Penang’s ‘pelan dasar’ is a rework of a 1970s plan made under predecessor legislation inherited from colonial times. The Federal Court in the Sunway City (Penang) case held Pelan Dasar 1996 to be, from its outset, a bureaucratic attempt to ‘perpetuate’ repealed law.
The policy plan never at any point had the authority of a local plan, and the gazetting of Penang’s Structure Plan in 2007 under the current planning laws after requisite public consultations, should have rendered it irrelevant but for the machinations of the State Planning Committee and Penang Island City Council.
One might be tempted to believe that by this judicial interpretation, the Kuala Lumpur CDP should likewise have been summarily dispensed with upon getting a structure plan – which first occurred in 1984.
This is not exactly the case, unfortunately, as Kuala Lumpur’s planning law (separate from, though similar to the Town and Country Planning Act 1976) ‘imports’ the 1970 CDP and implicitly confers it the status of a local plan.
Nevertheless, the Penang judgment did say this: “..courts are entitled to intervene where an exercise of such power by the relevant authority frustrates the policy and object of statute” – which describes how the CDP was being used.
While Penang still has the ‘residual protection’ of its hill land regime, it remains in planning limbo without a local plan (just as Kuala Lumpur was pre-2018).
Now, Kuala Lumpur has, to some measure, ‘come into the light’, and despite the flaws of the KLCP 2020, further departures from that plan can no longer be conducted via public hearing under Rule 5 which was highly restrictive towards public participation – and like the CDP itself, “frustrates the policy and object of statute”. We wish Penang all the best for getting themselves ‘into the light’, too.
Yet, for us in Kuala Lumpur, the prospect of litigations against questionable development orders issued before October 2018 will remain for years to come.
Notable among these is Wangsa Maju residents’ recent judicial review application against Kuala Lumpur City Hall’s approval of Nova Pesona Sdn Bhd’s project in Bukit Dinding. The first phase of the project involves the development of two 28-storey, high-end condominium blocks. This is on land which would clearly be hill land under Penang’s criteria but enjoys no such advantage here.
The quagmire we are in today is the result of a decades-long pattern of local authorities not embracing public participation, and in many cases, wilfully pushing back against its introduction in 1976 as the lynchpin of the Town and Country Planning Act. This was almost certainly at the behest of major landowners and business elites. Examples of this continue to manifest across their value chain.
For example, narratives by developers on ‘sustainable’ development hinging upon ‘reining in compliance costs’; and the quarry industry managing negative public perceptions by a NIMBy (Not in My Backyard) approach by seeking new quarry concessions inside forest reserves away from mainstream public outrage rather than tackling the overarching issue of sustainable rock supply.
It is my fervent hope that our courts will continue, without fear or favour, dispensing fair and correct judgments including, where warranted, against the entrenched interests of big business.
Only landmark rulings against major public-listed corporations can force the property and capital markets to recalibrate to meet the needs of sustainable development.
This is the personal opinion of the writer and does not necessarily represent the views of Twentytwo13.