Planning approvals on hill land require strict adherence to the TCPA, ensuring public participation and environmental protection.

I. Introduction

[1] These 2 appeals concern the law relating to planning approvals, more particularly, in relation to development on hill land and steep slopes in the state of Penang. This is a matter of significance because development on hillslopes is intrinsically related to sustainable development in the context of environmental law. It brings to the fore the need for a holistic approach in decision making in relation to property development, particularly on hill land and steep slopes as, notwithstanding legislation in this regard, sustainability of development has not necessarily been ensured. The governance of property development requires constant vigilance and a holistic approach in decision making by the relevant authorities.

II. Appeal History

[2] There are 2 appeals before the Federal Court brought by the Perbadanan Pengurusan Sunrise Garden Kondominium [Civil Appeal No 01(f)-24-12/2021 (P) & Sim Khoo Tneah Seng and Goon Swee Keng 01(f)-25- 12/2021 (P)] (collectively referred to as the Appellants) against the decision of the Court of Appeal, rejecting the respective Appellants' appeal to have the planning permission granted by the local authority, Majlis Bandaraya Pulau Pinang ('the local authority') set aside. The Court of Appeal in reaching its decision, affirmed the decision of the High Court.

[3] The history of these appeals commenced with appeals brought by the Appellants to the Lembaga Rayuan Negeri Pulau Pinang or the Penang State Planning Appeal Board ('the Appeal Board'), against the decision of the local authority dated 21 February 2012, granting planning permission, to Sunway City (Penang) Sdn Bhd, the registered owner of the subject land, and also the developer for the construction of a housing development project of 600 units of housing. The proposed development envisages 13 blocks of condominiums, 3 storey bungalows as well as other structures over a total area of 80.89 acres ('Sunway'), forty-three per cent of which comprises hill land.

[4] The Appeal Board, vide a decision dated 20 November 2015, set aside the planning permission dated 21 February 2012, granted by the local authority to Sunway.

[5] Sunway then filed the judicial review proceedings in the High Court at Penang, seeking to quash the decision of the Appeal Board and succeeded in doing so. Pared down to its essence, the High Court determined that the proposed development fell within the purview of a narrow trio of exceptions falling outside the strong prohibition against development on hill slopes under the Penang Structure Plan 2020, which was gazetted on 28 June 2007. This narrow coterie of exceptions was issued by the State Planning Committee in May 2009 vide administrative guidelines entitled "Special Projects under the Penang Structure Plan 2020" ('the Special Projects Guidelines').

[6] The High Court construed the third category of exceptions as a standalone exception, which was to be read disjunctively as a discrete, disconnected and distinct category, completely separate from the other exceptions. The High Court further held it was valid for the State Planning Committee to issue a direction to the local authority which allowed the local authority to ascertain whether a proposed project fell within either exception without further reference to the State Planning Committee. The result of such an interpretation was to effectively accord the local authority and the planning authorities, the discretion to determine, in any given case, whether a proposed hillside development, such as the present which relates to housing, could proceed or not.

[7] The Appellants appealed against this decision of the High Court which was upheld by the Court of Appeal. The Court of Appeal in its reasoning essentially adopted the reasoning and conclusions of the High Court and affirmed the same. Leave to appeal against the decision of the Court of Appeal was granted on 30 November 2021.

[8] The central issue in these appeals relates to the v