MBPP should be more vigorous in prosecuting illegal earthworks

The rate at which the beautiful hills on Penang Island are being destroyed is alarming.

Ordinary citizens in the island have been taking shots of many of these clearings, many presumably illegal, and reporting them to the Penang Island City Council (MBPP).

It is not clear what actions the Council has brought against these offenders. From what we read in the press, some of these offenders have been brought to court. In one of the first and well publicised cases in Bukit Relau, the company General Accomplishment was fined RM30,000.

Such paltry fines are simply pocket change to developers. It can be argued that such fines encourage more people to continue with illegal land clearing because they can simply write it off as part of business costs. Unless the Council is willing to take sterner action against these offenders, the problem will worsen.

The Council has been charging these offenders under the Street, Drainage and Building Act (1974) under section 70A that punishes any person carrying out earthworks without approval with “imprisonment for a term not exceeding five years, or to a fine not exceeding fifty thousand ringgit or to both…”. Significantly, whilst the Act provides for imprisonment, this course of action has not been pursued.

Penang Forum is of the view that to deter further illegal earthworks or unauthorised development, the Council should prosecute offenders under the Town and Country Planning Act 1976 (TCPA) that explicitly provides for charging both the company and its officer for committing the offence.

Furthermore the language is strongly worded to shift the onus of proof on the officer whose company has committed the offence. Section 52A of TCPA states:

Where an offence under this Act has been committed by a body corporate, a person who at the time of the commission of the offence is a director, manager, secretary or other similar officer of the body corporate … shall, as well as the body corporate, be deemed to be guilty of that offence unless he proves that the offence was committed without his knowledge or that he took reasonable precautions to prevent its commission. (emphasis added)

Hence, under the TCPA, it is clear that both the company and its officer can be charged for the offence.

Here the offence refers to carrying out any development (including levelling of land) without planning permission in contravention of Section19. Section 26 specifies a penalty, upon conviction, of “a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding two year or to both…”.

The maximum fine of RM500,000 under Section 26 of the TCPA is much heavier that the maximum fine of RM50,000 under Section 70A of the Street, Drainage and Building Act.

To deter further illegal land clearing and to send a stern warning to potential offenders, we urge the Council and the Deputy Public Prosecutor to charge offenders under the Town and Country Planning Act to seek the heavier penalty of imprisonment of the officer whose company is responsible for the offence, apart from the heavier fine of RM500,000 against the company. This would be a more powerful deterrent than the mere imposition of fines.

The offenders could still be charged under the Street, Drainage and Building Act as an alternative charge.

Penang Forum Steering Committee
11 August 2015

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