JUDGMENT

Hashim Hamzah JCA:

Introduction

[1] This is the Appellant's appeal against the order of the learned High Court Judge (hereinafter referred to as "the learned HCJ") dismissing the Appellant's judicial review application for an order of certiorari to quash the decision of the 1st and 2nd Respondents in rezoning and changing the express conditions of a piece of land held under Title No. HSD PN 7143, Lot No. 4658, Bandar Tanjong Bungah, Daerah Timur Laut, Negeri Pulau Pinang (hereinafter referred to as the "Subject Land").

Background Facts

[2] Briefly, the background facts in the present case are as follows.

[3] The Appellant is one of the purchasers and currently owns a condominium unit at One Tanjong Condominium (hereinafter referred to as "OTC"). In the judicial review application, the Appellant was named in a representative capacity on behalf of himself, Tan Heng Chai and 48 other condominium unit owners in OTC. The OTC is situated adjacent to the Subject Land.

[4] The 1st Respondent, ie, the State Planning Committee of Pulau Pinang, was established under s 4(1) of the Town and Country Planning Act 1976 [Act 172] (hereinafter referred to as "TCPA 1976"). The purpose of the 1st Respondent's establishment was, among others, to regulate, control, plan and coordinate all development activities in the State of Pulau Pinang.

[5] The 2nd Respondent is the Director of the Pulau Pinang Town and Country Planning Department.

[6] The Subject Land was alienated through a lease to Purerich Realty Sdn Bhd (hereinafter referred to as "PRSB") on 27 November 1995. The express condition of the Subject Land was "Marina Centre". The Subject Land is under a lease of 60 years, expiring on 27 November 2055.

[7] The current lease owner of the Subject Land is Province Valley Sdn Bhd (hereinafter referred to as "PVSB"). The 3rd Respondent had entered into a sale and purchase agreement dated 11 May 2015 with PVSB to purchase the Subject Land. The learned HCJ had on 15 May 2023 allowed the 3rd Respondent's application to intervene in the judicial review proceeding.

[8] The Subject Land has had no zoning since it was alienated from PRSB. On 13 November 2021 and 17 November 2021, the 2nd Respondent received an application from Beu Tan Architect (hereinafter referred to as "BTA") on behalf of the 3rd Respondent to rezone the Subject Land from "NO Zoning" to "General Business Zone" under a proposed development of a serviced apartment and a wellness centre on the Subject Land.

[9] The 3rd Respondent's application was tabled and considered in one of the 1st Respondent's meetings. The local state legislative assembly member was also present at the meeting.

[10] During the meeting, all technical departments, except the Penang City Council's Planning & Development Department, had agreed to the application for the rezoning of the Subject Land.

[11] It was undisputed that the proposed development of a serviced apartment and a wellness centre on the Subject Land aligned with the Penang State Structure Plan 2030 (hereinafter referred to as "the 2030 Structure Plan") as the area applied for was still within the "Development Area 1, ie, Business Development, Housing, Infrastructure, Utilities and Public Facilities".

[12] The application was approved by the 1st Respondent on 25 January 2022, subject to the condition that it is only to be used for retirement and health suites. The decision in the 1st Respondent's meeting was informed to the 3rd Respondent and BTA on 16 April 2022. On 27 July 2022, the Subject Land was rezoned as a "General Business Zone".

[13] Dissatisfied, the Appellant filed a judicial review application before the High Court below, seeking an order of certiorari to quash the Respondents' decision in allowing the rezoning of the Subject Land from "No Zoning" to "General Business Zone" and allowing the variation of the express condition of the Subject Land from "Marina Centre" to "General Business".

[14] The High Court dismissed the Appellant's judicial re