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2023 MarsdenLR 1343
HIGH COURT MALAYA SUNGAI PETANI
UNITED BASE METALS SDN BHD – Appellant
Versus
KETUA PENGARAH KUALITI ALAM SEKELILING & ANOR – Respondent
[Judicial Review No: KB-25-1-08/2021]
The court upheld the legality of a Prohibition Order under the Environmental Quality Act, affirming that conducting prescribed activities without prior approval constitutes a violation of the law.
Headnote:(A) Environmental Quality Act 1974 - Sections 34AA and 34A - Prohibition Order issued to applicant for conducting activities without prior approval - Judicial review sought to declare the order unreasonable and unlawful - The applicant was found to have carried out prescribed activity without an Environment Impact Assessment report, violating the EQA - The court found the Prohibition Order to be clear and not vague, and upheld its legality. (Paras 1, 9, 14, 35, 40)
(B) Judicial Review - Scope of judicial review in administrative decisions - The court must determine if the administrative body acted within its authority and followed due process. (Paras 9, 11)
Facts of the case:
The applicant, a company engaged in recycling non-ferrous metals, was issued a Prohibition Order by the Director General of Environment for conducting activities without the necessary approvals. Inspections revealed continued operations that violated the EQA.
Findings of Court:
The Prohibition Order was upheld as the applicant failed to comply with the EQA, specifically regarding the requirement for an Environmental Impact Assessment report.
Issues: The main issues were whether the Prohibition Order was vague and whether it was lawfully issued given the applicant's activities.
Ratio Decidendi: The court held that the Prohibition Order was clear and the applicant's activities constituted a prescribed activity under the EQA, justifying the issuance of the order.
Result: Application for judicial review dismissed with costs.
| Table of Content |
|---|
| 1. judicial review of prohibition order under eqa. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. arguments regarding the legality of prohibition order. (Para 9 , 10) |
| 3. analysis of the prohibition order's clarity and compliance. (Para 11 , 12 , 13 , 14 , 15) |
| 4. discussion on prescribed activities and eia requirements. (Para 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23) |
| 5. determination of the applicant's activities as prescribed under eqa. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 38 , 39) |
[1] By way of this judicial review, the applicant seeks to declare as unreasonable and unlawful a Prohibition Order issued by the 1st respondent and seeks a writ of certiorari to quash the said Prohibition Order. The Prohibition Order was issued pursuant to s 34AA of the Environmental Quality Act 1974 (' EQA ') to prohibit the applicant from further conducting a prescribed activity at the applicant's premises without the Department of Environment's prior approval.
Background Facts
[2] The applicant, United Base Metals Sdn Bhd, is a company which carries on the business of importing, exporting, manufacturing non-ferrous metals and secondary smelting of aluminium and copper. This business is carried out on lots 8068, 8069 and 8071, Jalan Bedong, Kawasan Perindustrian Gurun, Bedong, Kedah.
[3] The 1st respondent, 'Ketua Pengarah Kualiti Alam Sekeliling', is the Director General of Environment and chief enforcer of the EQA .
[4] The 2nd respondent, 'Jabatan Alam Sekitar Negeri Kedah', is the Kedah Department of Environment at Sungai Petani('DOE') and the applicant's premises is under its purview.
[5] On 9 February 2021 the 2nd respondent's officer inspected the applicant's premises. At the end of the inspection the officer issued the applicant a Field Citation as he found that the applicant was carrying out scrap metals recycling activities at the premises. This Field Citation required the applicant to carry out the following:
13.2.1 Pemohon dikehendaki mengemukakan laporan percontohan cerobong bagi setiap unit cerobong dari setiap 'section' di premis Pemohon;
13.2.2 Pemohon dikehendaki mendapatkan surat pengesahan berkenaan dengan status EIA untuk proses 'copper rod' dengan JAS Kedah;
13.2.3 Pemohon dikehendaki mengemukakan surat pengesahan proses 'section' dan status pengoperasian dari setiap 'section' termasuk gambar proses dan jenis material dari setiap 'section'; dan
13.2.4 Pemohon dikehendaki memberikan maklum balas perkara di atas sebelum 21 Februari 2021.
[6] Another inspection took place on 2 March 2021. The applicant was again issued with another Field Citation as the inspecting officer found that the applicant had built a plant to recycle scrap metals at its premises specifically at a building identified as Block 2C. This activity had been carried out without DOE's prior approval. In this Field Citation the applicant was instructed to take the following steps:
1. Seksyen 34AA Menghentikan aktiviti peleburan copper tanpa kelulusan EIA di Blok 2C dengan serta merta.
2. Menutup laluan keluar di kolam yang terletak di Blok A1 bagi menghalang pelepasan air ke alur air luar dengan serta-merta.
3. Maklumbalas perkara 1 dan 2 ke Jabatan Alam Sekitar Cawangan Sungai Petani sebelum 9 Mac 2021.
4. Pastikan pematuhan kepada Akta Kualiti Alam Sekeliling 1974 sepanjang masa.
[7] Thereafter, a series of correspondences took place between the applicant and the 2nd respondent but the parties were unable to resolve the matter amicably as the 2nd respondent was of the view that the applicant had failed to comply with its earlier instructions and that there remained a continuous breach of the EQA by the applicant. Invoking its powers under s 31(1)(g) , the 2nd respondent proceeded to issue the applicant a Notice of Instruction on 16 March 2021. Section 31(1)(g) reads as follows:
Section 31. Power to require owner or occupier to install, operate, repair, etc
1) Where any environmentally hazardous substances, pollutants or was
