Appellate court dismisses Penang residents’ appeal against Sunway property development

PUTRAJAYA (May 7): The Court of Appeal today dismissed the appeal filed by Sungai Ara residents, upholding the Penang High Court’s decision permitting Sunway City (Penang) Sdn Bhd to build a housing scheme development on a hilly area.

The three-member bench led by Justice Datuk Yaacob Md Sam said they unanimously ruled the appeal be dismissed with no order as to costs.

“We are in total agreement with High Court Judge Datuk Lim Chong Fong of his findings and we therefore affirm the decision.

“In conclusion, we find there are no merits in the appeal which warrant us to exercise our appellate intervention,” said Justice Yaacob.

The other members were Justices Datuk Azizah Nawawi and Datuk Ahmad Nasfy Yasin.

The residents were appealing against the Penang High Court order to quash the decision of the Penang Appeal Board (PAB) which had set aside the planning permission granted to Sunway City for the proposed development of Sunway Hills.

The Penang Island City Council (MBPP) had granted Sunway City planning permission on the 80.89-acre lot of land in February 2012.

The land, situated 76 metres above sea level with approximately 43% of the area having a gradient exceeding 25 degrees, is a First Grade title land with no restriction of land use.

The residents of Sungai Ara consequently appealed through the PAB and the planning permission was set aside in January 2016.

After being aggrieved and adversely affected by the decision, the property developer filed for judicial review at the Penang High Court. In May 2017, the High Court ordered the decision of the PAB to be quashed.

Counsel Datuk Dr Gurdial Singh Nijar, who is representing the residents, had on March 26 submitted at the appeal court that the structure plan imposes an absolute prohibition on hill slope land.

He added the court should not intervene with the PAB decision as the board is an expert tribunal set up to resolve disputes between planning authorities, developers and others over the practical application of policies.

Sunway City’s counsel Datuk Dr Cyrus Das said the structure plan is a mere “statement of policies” and not a piece of legislation that is legally binding on all parties

The counsel added the Department of Urban and Rural Planning, which was entrusted to carry out the decisions and implement policies of the State Planning Committee, confirmed that the proposed development was a “projek istimewa” (special project) under its guidelines.

He asserted that if a proposed development falls within the category of “projek istimewa”, there is no requirement for planning permission to be referred to the state planning committee for approval.

The Court of Appeal bench was in agreement with Das' submission and the High Court judge’s findings on the interpretation of the state planning committee guidelines.

“We find no basis to conclude that the learned High Court judge (Lim) was plainly wrong on the issue of the interpretation of the guidelines.

“We are also in agreement with the submission from the company that the structure plan prescribed general policies for development within Penang and is not to be treated as a piece of legislation.

“The principle of the planning policies in the structure plan need not be slavishly followed by MBPP, when dealing with an application for planning permission,” Justice Yaacob stated.

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