Wrong to approve sensitive hill lands development — Gurdial Singh Nijar

FEBRUARY 20 — The Penang Appeals Board has struck out the planning permission given to a developer to build dwelling places and condominiums on sensitive hill lands in Sungai Ara. Land that is 250 feet above sea level and with a steep slope exceeding 25 degrees. The Penang State’s Structure Plan 2020 prohibits any development on such land.

But it allows ‘limited development for special projects’. The 3-member Appeals Board decided that it was neither a special project nor a limited development; and set aside the flawed approval given to Sunway City.

The ruling vindicates the stance of NGOs such as the Penang Forum and CAP. They, together with the irate neighbours, were front-liners in agitating for years against the grant of planning approval to build on vulnerable hill lands.

The Board's lucid reasoning made clear – the only development allowed would be that which had been approved before the Structure Plan came into existence in June 2007. For this the owner had to change the land use – presumably from agriculture to building; and importantly secure approval for the development project. All this before the 2007 deadline.

The developer – Sunway City – had done nothing of this kind. It applied in March 2011and got the City Council approval in February 2012. So concluded the Board, “No right to housing development had been crystallised or vested in it”.

The fact that the land was zoned for housing development was insufficient. Apparently it was so zoned under the 1996 State’s Master Plan. The Board ruled that this did not dispense with the requirement for the land use to be changed before 2007. ‘Zoning is different from ‘tukar syarat’. It is just a planning indicator’, said the Board.

In any event Sunway’s proposal to build 600 dwellings in multi-storied condominiums – between 5-16 storeys high in some cases – could hardly qualify as 'limited development', said the Board.

This decision is also binding on seven other cases that were before the Appeal Board. Notably, the City Council has approved some 55 blocks of high-rise development on delicate hill lands between 2008-2015.

There is now clear legal authority that it is wrong to approve the Sunway-kind housing development approvals under the exception of a ‘limited development of a special project’ on hill lands unless the change of use and planning permission for development was all secured before the adoption of the Structure Plan – that is before June 2007. And large development projects would also fall foul of the 'limited development' requirement of the planning law.

The Penang State government has repeatedly justified approvals of development on vulnerable hill lands on the basis that the area was zoned for housing without more. And by the previous BN administration. The Board has dispelled this notion. Yet another fear that the government would be sued for huge millions to bankruptcy if it were to disallow such projects has been laid to rest by this decision.

Admittedly development must not be thwarted. But the planning authority cannot take into account only the economics of the market place (or as Pope Francis and Bernie Sanders would infelicitously say, greed). The planning authority must necessarily take into account, at the same level, the economics of survival (and safety) as well as the economics of nature and its intrinsic value especially in the face of the threatened spectre of climate change.

The decision now provides the Penang State government sufficient gumption to champion the ordinary citizen vis-à-vis developers in this delicate interface between good governance, protecting citizens’ safety and preserving the environment. We all await their expected rise to this challenge.

* Gurdial Singh Nijar is professor at the Law Faculty of University of Malaya.

** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.