The court determined that s 70A of the 1974 Act is regulatory, not prohibitory, impacting quarry activities as governed by local authority.

[1] This is an appeal against the judgment of the Court of Appeal that reversed the judgment of the High Court.

[2] This appeal concerns the question of whether a provision in a statute is prohibitory or regulatory in character.

Background Facts

[3] The factual background leading to this appeal is quite simple and straightforward. We will only highlight very briefly the pertinent undisputed facts insofar as they are relevant to the issues that arise for decision in this appeal before us.

[4] Majlis Perbandaran Seberang Perai ("the respondent") is the Local Authority for the Seberang Perai municipal area.

[5] At all material times, Weng Lee Granite Quarry Sdn Bhd ("the appellant") was a granite quarry operator and the registered owner of pieces of land in the Seberang Perai municipal area ("the subject lands") on which lands it carried out quarry activities that involved mining operations and the removal of rock materials beyond the boundaries of the subject lands.

[6] Title to each of these subject lands was issued under the National Land Code (Penang and Malacca Titles) Act 1963 ("the 1963 Act"). All titles carry an express condition ("Condition B") that states as follows:

"The land comprised in this title:

(B) Shall not be affected by any provision of the National Land Code or any other written law prohibiting mining or the removal of specified materials beyond the boundaries of the land."

[7] Since 1972, the appellant had been carrying out rock quarry activities on the subject lands, which are located next to the Mengkuang Dam in the Seberang Perai municipal area.

[8] In 2001, the respondent issued a stop work notice to the appellant as the appellant was carrying out quarry operations on the subject lands without having first applied for and obtained Earthworks Plan Approval from the respondent. At this point, there was no protest made against the respondent and the appellant readily submitted the Earthworks Plan, which was approved by the respondent on 15 July 2002. The approval was subjected to various terms and conditions.

[9] However, on 3 April 2013, the respondent again issued a stop work order notice that stated:

(a) the appellant was in breach of the conditions imposed by virtue of the approved Earthworks Plan dated 15 July 2002; and

(b) Unless a new written approval was first obtained, no earthwork may commence on the subject lands.

[10] In point of fact, the appellant had carried out quarry works exceeding the minimum earth cutting levels allowed in the said Earthworks Plan Approval. The notice was issued by the respondent pursuant to s 70A of the Street, Drainage and Building Act 1974 ("the 1974 Act") which stipulated that no person shall commence or carry out or permit to be commenced or carried out any earthworks without having first submitted to the local authority plans and specifications in respect of the earthworks and obtained the approval of the local authority thereto.

At The High Court

[11] About almost two years after the stop work order notice was issued, on 18 March 2015, the appellant commenced in the High Court the current action under appeal seeking for:

(a) a declaration that the subject lands be exempted from s 70A of the 1974 Act and the imposition of conditions under the Act on the subject lands, ultra vires the 1963 Act; and

(b) Damages against the respondent for having prevented the appellant from carrying out quarry activities on the subject lands.

[12] The appellant anchored its case on the primary ground that the provisions of s 70A of the 1974 Act did not apply to the subject lands for