Nik Hashim FCJ:

The Question

[1] On 24 July 2006, this Court granted leave to appeal on the following question:-

Whether a direction given by a local authority under s 21(3)(g) of the Town and Country Planning Act 1976 to an Applicant for planning permission under the said Act is a 'decision' which is appealable under s 23 of the said Act.

Background

[2] The 1st Respondent is a local authority incorporated under the Local Government Act 1976 and is the local planning authority for the island of Pulau Pinang pursuant to the Town and Country Planning Act 1976 (the Act).

[3] The 2nd Respondent, Lembaga Rayuan Negeri Pulau Pinang, is constituted under s 36 of the Act to hear appeals pursuant to s 23 of the Act against decisions of the local planning authority made under s 22(3) of the Act.

[4] The appellant is a developer

[5] The facts are that on 30 December 1993, the appellant made an application for planning permission for development, namely the demolition of the existing building known asNo: 457 Jalan Burma, (the building) on LotNo: 2334, s 1 George Town, North East District, Pulau Pinang (the land) and for the erection of 20-storey service apartment on the land.

[6] By a letter dated 26 April 1994, the 1st Respondent directed the appellant pursuant to s 21(3)(g) of the Act to amend the plans submitted together with its application in accordance with the list of 16 requirements and comments of the relevant departments and to resubmit the amended plans within three months failing which the application was deemed to have been withdrawn. However, under s 21(5) of the Act the appellant may submit a fresh application.

[7] The requirementNo: 16 (the direction) was as follows:-

Adalah diperakukan bangunan sediada yang menarik dikekalkan dan pemajuan baru direkabentuk di sekeliling bangunan ini.

[8] By a letter dated 21 February 1995 and after the expiry of the stipulated period of three months the appellant's architect returned to the 1st Respondent the amended layout plans (the plan) for its further consideration and approval together with a fresh proposal for the demolition of the building and for the erection of a 24-storey building on the land.

[9] The 1st Respondent, however, Vide its letter dated 18 November 1996, directed the appellant to amend the plan accordingly in order to comply with the decision of the 1st Respondent made on 14 October 1996 directing the appellant to preserve the building and to erect its proposed building in the vicinity of the building. The appellant was also required to resubmit the amended plan within two months. The above letter containing the direction reads as follows:-

[10] On 17 December 1996, the appellant appealed to the 2nd Respondent against the direction of the 1st Respondent under s 23 of the Act for refusing to reconsider its decision to impose the direction and directing the appellant to comply with the said requirement.

Finding Of The Appeal Board

[11] During the hearing of the appeal before the 2nd Respondent, the 1st Respondent raised a preliminary objection that the direction was not appealable under s 23 of the Act. The 2nd Respondent however, overruled the preliminary objection and also held that the 1st Respondent had no powers to issue the direction. The appeal board said at p 313 of the appeal record as follows:-

However, s 23(1) cannot be read ad litteram and in isolation; that would only produce the absurd result that an Applicant cannot appeal and is without a recourse against a direction that is unreasonable, unlawful and or beyond the scope and ambit of the Act.

And the appeal board at p 317 continued:-

Even said beforehand, s 23(1) cannot be ad litteram. It must be read within the context of the Act read as a whole. Its meaning must be ascertained noscitur a sociis by reference to associated words and associated provisions and the sense within the context of the Act as a whole.

And s 23(1) read within the context of the Act as a whole, surely provides, and this construction is entire