Special projects in the context of hill land development in Penang have been controversial. Penang Forum provides its definition.
The relevant official documents governing use of hill land are:
- Land Conservation Act (LCA) 1960;
- Development Control and Planning Master Plan 1996 (Pelan Dasar) approved by the State Planning Committee, but not gazetted and is therefore merely a guideline; and
- The Penang Structure Plan 2020 (Structure Plan), gazetted in 2007.
Some plots of land above 250 feet that were removed from gazetted ‘hill land’ under the LCA and given planning permission for residential use in the Pelan Dasar were empty plots intended for residential bungalows.
The Structure Plan forbids development on gazetted ‘hill land’ and in areas more than 250 feet above sea level and/or on hill-slopes steeper than 25 degrees. (paragraph DK3 L2).
However, DK3 L4 in the Structure Plan states that “limited development for special projects in areas at or higher than 250 feet” must be subjected to stringent controls in compliance with hill land development guidelines and any other guidelines imposed by the State, and approvals under EIA and the State Planning Committee. It follows that these stringent requirements should apply to the above mentioned bungalow lots in the Pelan Dasar which have approved planning permission.
DS30 L5 of the Structure Plan states that housing development is allowed in areas where change of conditions (rezoning) had been approved and officially confirmed for housing before the Structure Plan was adopted. As this paragraph is in a section that does not specifically deal with hill land, it is irrelevant to this context of special projects.
In 2009, the State Planning Committee came up with Guidelines for Special Projects (2009 Guidelines) to define and categorise “special projects” into:
Category 1: public infrastructure projects like cable cars, roads, railway, reservoirs, bridges, helipads, etc.
Category 2: housing development areas where change of conditions (rezoning) had been approved and officially confirmed for housing before the Structure Plan was adopted. They include:
- development projects which had prior planning permissions, or
- areas shown as housing zones according to the Pelan Dasar (until the Local Plan is gazetted)
However any development in such areas is still required to comply with conditions of the Technical Department and strict control for ensuring slope stability and its surrounding environment.
Category 3: construction on hill land zoned for agriculture is limited to 1 house per acre for non-first grade land and a maximum of 6 houses per acre for first grade land.
Penang Forum’s Contention
Penang Forum’s contention is that the 2009 Guidelines have unnecessarily widened the definition of “special projects” in Category 2. It should have restricted “special projects” to cover only areas above 250 feet which have been rezoned for housing (bungalows) in the Pelan Dasar and have been granted planning permission before the adoption of the Structure Plan. It should not have widened the definition to include other areas that might have been rezoned for housing in the Pelan Dasar but have not been granted planning permission. Should there be any land titles which have been converted for building (housing) before the Structure Plan, they can be dealt with on a case to case basis.
Penang Forum’s opinion is that the State Authority should have in 2009, also amended the Pelan Dasar to rezone land above 250 feet from housing back to hill land particularly those without planning permission. The Local and State Authorities can ‘internally’ amend the Pelan Dasar as it is just a guideline and has not been gazetted. Landowners who had not taken any action to develop their land since 1996 cannot complain about any amendment to the 1996 Pelan Dasar.
Extension of planning permission (where development has not commenced)
Planning permission given before 2007 may be extended when it expires after one year (before commencement of development) and such extension can only be granted up to five times [para DS31 L1, Structure Plan]. Even then, extension is not mandatory and it is at the Council’s discretion.
Even if extensions are granted for a maximum of five times, planning permissions approved before 2008 could not have been extended beyond 2012, and therefore the 22 projects approved since 2012 (according to the list furnished to the State Assembly in Nov 2015) are deemed new approvals.
Stringent controls can be imposed when extending planning permission in line with the Structure Plan (DK3 L4) and the TCPA. New conditions, including EIA and hill land guidelines can be imposed and the conditions originally imposed can be varied [TCPA s. 24(5)].
For projects that have been granted extension after 2008, were stringent controls and new conditions imposed or original conditions varied?
The new condition imposed in the case of MPPP v Sungai Gelugor Co-op Society Bhd (often quoted by the State Authorities) which was declared null and void by the Court, is irrelevant to our above discussion. The new condition imposed therein was solely to control the price of houses after the developer has already sold their units to purchasers and has nothing to do with the control of development planning.
Is compensation payable?
Compensation is payable only if planning permission or approved building plan is revoked or modified after commencement of development. (TCPA s. 25).
Compensation is also payable only if the Local Council issues a requisition notice to discontinue development or impose new conditions after development has commenced or to alter/remove any building/works. (TCPA s. 30).
Furthermore, a purchase notice requiring the Local Authority to purchase land (TCPA s. 37) is only applicable where the application for planning permission has been refused on the grounds that the land is intended for public purpose and has therefor become incapable of reasonable beneficial use to the landowner, or that a requisition notice had been issued by the Local Authority.
The contentions of the Penang Forum above do not relate to the revocation or modification of planning permission, or issuance of a requisition notice or requiring land for public purpose. Therefore the issue of compensation or purchase notice is irrelevant.
Limited development for Special Projects
Penang Forum reiterates that under the Structure Plan “limited development for special projects in areas at or higher than 250 feet”:
1. Refers to bungalow lots identified in the Pelan Dasar which have approved planning permission before adoption of the Structure Plan;
2. Must be subjected to stringent controls in compliance with
- hill land development guidelines
- any other guidelines imposed by the State;
- approval under EIA; and
- approval by the State Planning Committee.
If that is the case, how could high-rise projects and a hotel (Appendix 1) approved since 2008 be regarded as “limited development for special projects”?