Penang Forum 6: Save the Hills of Penang – Rapporteur’s report

Bukit Kukus

This is the report of the proceedings from a forum on the hills of Penang held on 12 December 2015, organised by Penang Forum.

Save the Hills of Penang!
Organised by Penang Forum
Venue: Dewan Sri Pinang, Ground Floor
Date: 12 December 2015 (Saturday); Time: 1.30 – 5.30pm

Tentative Programme
1.30pm: Registration
2.00pm: Why are we here today? – Dato Dr Sharom Ahmat
2.10pm: What is happening to our hills? Dato Dr Leong Yueh Kwong, Dr Kam Suan Pheng & Ahmad Chik
2.40pm: Are our hills being protected by the government? Ir. K.K.Lim
3.00pm: Q & A moderated by Laurence Loh
3.30pm: Botak Hill: Does anyone really know what is happening? – Anil Netto
4.00pm: Hill offenders: Fine, Jail, Nothing? Dato Agatha Foo & Mohideen Abdul Kader
4.30pm: What can we do? Moderator: Ahmad Chik
5.30pm: End

PROCEEDINGS

Dr Lim Mah Hui, master of ceremonies for the forum, presented the agenda. He described our gathering today as significant as it demonstrated the vibrancy of civil society in Penang. He reminisced that our present venue, Dewan Sri Pinang, was also significant in that it was the place where Penangites came together in 2007 to strongly protest against the Penang Global City Centre project. Our voice was heard then and it is hoped that it will be heard again today!

1. Why are we here today? – Dato Dr Sharom Ahmat – former Deputy Vice Chancellor of Universiti Sains Malaysia, Penang

Dato Dr Sharom thanked the organisers for giving him the honour to say a few words. Looking at the agenda, he observed that experts would be presenting information on the state of the hills in Penang. He recollected that in 2013, our MC, Dr Lim Mah Hui, gave an impassioned speech at a full council meeting of the MPPP on the serious degradation of the hills in Penang and called for urgent action to be taken by the Council. Sadly and shockingly, it is quite clear that, to date, nothing has been done. Graphic images will be shown later to show this sorry state of affairs.

This meeting will discuss a total of 124 projects (legal and illegal) on hill land above 250ft and/or on incline greater than 25 degrees. There are development restrictions on land above 250ft and/or on slopes above 25 degrees. Fifty-six projects were approved between 2008 and 2015, and these were designated as “special projects”. Common sense dictates that such “special projects” should be of benefit to the people. But these projects involved bungalows costing RM4million to RM5million! How can this be of any benefit to the common people, the man or woman on the street? These projects are not for ordinary Penangites but for the super rich. Obviously, vested interests are involved. And environmental degradation in the form of hill cutting is the tragic consequence.

Dr Sharom said 33 illegal clearing of hills were reported from 2008 to 2014. In 2015 alone there were 35 such cases. This number is greater than the sum of all the illegal clearing in the past seven years. The panelists will surely be touching on this. There will be adverse ecological, environmental and economic impacts causing human pain.

There need to be political will on the part of the State government if the situation is to be checked and prevented from becoming even worse. We must submit to higher reason and higher conscience, otherwise we will lose our morality and integrity.

In 1986, Prince Philip, then President of the WWF International, invited leaders of the five major religions in the world to discuss and deliberate on what each respective faith can do to save the planet. The meeting took place in Assisi in Italy because it was the birth place of St Francis, the Catholic saint of ecology. Various key statements were made by leaders of the five faiths outlining their own distinctive traditions and approach to the care for nature. To summarise, Dr Sharom touched on perspectives from Buddhism and Islam.

In Buddhism, gentleness and non-violence are extremely important tenets. This applies to both relationship among human beings and the relationship between human beings and the environment. Compassion and responsibility must be exercised to ensure harmony between human beings and nature.

In Islam, Muslims believe that Allah has made human beings as the most intelligent beings on earth. But unfortunately it is this human being who is also the most destructive. Muslims consider themselves trustees of God. Human beings are God’s stewards and agents on Earth. Dr Sharom said three central concepts in Islam – unity, trusteeship and accountability – are the basis of environmental ethics in Islam.

Dr Sharom referred the audience to the Assisi Declarations which carried the full statements from Buddhism, Christianity, Hinduism, Islam and Judaism as regards how human beings should relate to the environment. These declarations can easily be found in the internet.

Dr Sharom said he was pleased that the Penang state government has adopted the acronym CAT (Competency, Accountability and Transperency) as the basis for good governance. He said he was happy that the Chief Minister Lim Guan Eng has stated that he would disclose details on the land reclamation concession agreements. Dr Sharom hoped this would apply not only to the concessions agreed by the previous state government but also extended to the concession agreements by the current government.

Dr Sharom pointed out that the opposition in Parliament has asked for disclosure on major projects. Ong Kian Ming, the Member of Parliament for Serdang, has asked for the ERL concession to be disclosed to find out why the fare was increased from RM35 to RM55.

“We call upon the state government of Penang, which is all for transparency and accountability, to provide answers to our questions. The state government must closely monitor hill cutting and clearing and take stern measures to curb any illegal activity. The state government is accountable to not just a few people but to all the citizens of Penang. Competency and transparency are great tenets but these must not become empty slogans. The state government must walk the talk,” he said.

Dr Lim Mah Hui presented an American Indian saying:

“Only when the last tree has been cut down; Only when the last river has been poisoned; Only when the last fish has been caught; Only then will you find that money cannot be eaten”

2.20pm: What is happening to our hills? Dato Dr Leong Yueh Kwong – former professor in USM; Dr Kam Suan Pheng – scientist & Ir Ahmad Chik, Dr. Ti Lian Geh

Dato Dr Leong started the presentation stating that a number of them were involved in the Save Penang Hill campaign many decades ago. Among them were MNS, Suan Pheng, Ahmad Chik, CAP, and SAM.

Overview of presentation is as follows:-

  • Development of hills in Penang. Leong Yueh Kwong
  • Where is development taking place? Kam Suan Pheng
  • How not to overdevelop the Hills – the Berjaya approach and proposal of 1999 for Penang Hill. Ahmad Chik
  • What environmental impacts can happen with hillslope development? A case study of Air Itam/ Paya Terubong area. Ti Lian Geh

Dr. Leong gave a background on the hills of Penang. Hills form part of Penang Island. The whole of Seberang Perai is quite flat. Most of the hills were converted for other land use. The hills of Penang are the last areas of Penang that still have natural forests and vegetation left.

The impression of anyone driving into Penang Island or coming in by ferry is that a large area of Penang is still green as most of the hilly land in Penang that is visible is still covered by forests and natural vegetation. But this impression is misleading if one examines the land use of the island.

The forests and natural vegetation has been mainly converted into agriculture and urban development. Only about 15% of Penang state is covered by forest and only 9% protected as forest reserve.

Why did the hills remain relatively undeveloped? The hills of Penang are largely not developed because before the modern technology of chain saws and tractors, cutting down forests was difficult. In the case of Penang the designation of 200ft level shown in old maps during the colonial period is peculiar to Penang. Although hilly in the centre part, the tallest portion is only 820ft. Development for residential and commercial purposes was not allowed above 200 feet above sea level and/or on slopes greater than 25 degrees.

During drafting of the first Penang Structure Plan, the State decided to raise the level from 200ft to 250ft for designation as hill land. This is the basis for the policy of no development above 250ft while slope restriction of development above 25 degree slopes remained in the policy.

Much of the State land of the hills is protected as forest reserves and water catchment areas. Most of the eastern part of the hills of Penang was identified for water catchment. The western side such as Balik Pulau was given to agriculture, mainly for perennial crops such as nutmegs, cloves and gambier and later fruits such as durians. In terms of present land use of the hills in Penang, several important functions remain.

One of the things that threatened to upset the balance and change the nature of hill development in Penang was the Berjaya development plan for large scale residential, commercial development, golf course, and condominiums. The public protested and as a result the detailed environmental impact assessment (DEIA) was scrutinized and commented upon.

After much public protest, the project was rejected by the State Government after the DEIA was rejected as the environmental damage was considered unacceptable.

A local plan was then prepared. And the Penang Hill Local Plan was the only plan that Penang had. Despite the Local Plan, there was illegal development on the hills. This clearly violates the structure plan and the state policy.

Current state of hill development – how come there are so many legal and illegal projects? Why is the State going against its own policy which is quite clear? The State is approving projects above the level of 250ft and/or greater than 25 degrees gradient. Maybe the State intends to reverse the policy. But the Town & Country Planning Act (TCPA) requires public hearing before reversing a policy.

Dr. Kam Suan Pheng continued the presentation by showing maps where development has taken place. Dr. Kam showed the contour legend. The red lines demarcate the borders of contour above 250ft. The pink shades show slopes steeper than 25 degrees. The map uses information from what is available in the public domain because she was not privy to the State’s maps.

Dr. Kam proceeded to show cases of illegal hill land clearing from 2008 to 2015 which covered hills in Penang Hill, Pantai Acheh, Teluk Bahang, Paya Terubong, Batu Hitam, and Bukit Gambier. Google Earth dots in blue showed development near Teluk Bahang reservoir, and the slopes were directing to the reservoir catchment threatening to pollute the area.

Dr. Kam presented records of repeat offenders of illegal hill land clearing from 2008 to 2015. Some projects were clearing on agriculture land, Taman Negara Pulau Pinang (national park boundary). Realty and housing developers have been clearing land repeatedly. Why are they allowed to get away with the illegal clearing?

Many of the approved plans for building construction on land above 250ft or 25 degrees slope are close to the 250ft contour. The clearing on Bukit Relau, also known as “Botak Hill”, is clearly above 500ft and reaching up to 1,000ft. This is a recognized case of illegal land clearing, an unprecedented residential development on high hill land, and a dangerous precedence.

Dr. Kam showed a series of maps dated 20 February 2013, 5 March 2014, 11 May 2014, 8 February 2015, and 12 August 2015. The pictures showed that the developer undertook token amount of tree planting. Picture on 12 August 2015 shows what was grown in the bald patch is no more there. The pictures were taken from drones. The wrinkles in the pictures are gullies.

Every few months, something new appears. Road building has started. Pictures were taken by hikers and show the extent of destruction.
What the public wants to know:

  • How much hill land belongs to the state and where?
  • Why the need to use hill land for residential development?
  • How much hill land gazetted as forest and agriculture use has been converted for residential development?

Ahmad Chik: I was supposed to talk about the past regarding Penang Hill development. But I will start with quoting from the Penang Monthly bulletin that focused on Penang Hill. The editorial was written by Ooi Kee Beng titled “Hills r Us”. This monthly is published by the Penang Institute.

Ahmad picked up some salient points from the article.

“Natural resources are always good to have. If rightly used, they are the basis not only for an economy’s path of growth, but also for its international identity. What are Penang’s chief natural resources? A quick look at any geographical map of Penang Island will tell that the island is largely about its hills. The hills are Penang’s core in a more intrinsic way than George Town is. They are its soul. They are a greater heritage than Penang’s hawker food and lively streets.

Penang’s given assets are therefore not only its built heritage. They include our geographical features. Our beaches are practically gone as attractions. Our coastlines are badly compromised. Our rivers are a smelly embarrassment. For now, our luxuriant jungles and our leafy hills still remain. For the sake of the present and future generations, these have to be realised as the riches that they are so that they can be properly cherished and relished.”

Now we move on to the past. We woke up one morning to a front-page story regarding a memorandum of agreement signed by the CM of Penang with Berjaya to develop Penang Hill. First, we were not sure what was happening until we got to know more about it. There were plans to develop shopping malls, golf course, cable car, hotels, theme parks, etc. Berjaya is a very influential company then. It was more politically connected compared to now.

People in Penang have a strong sense of belonging to the hills, especially for Penang Hill. MNS formed alliance with CAP, SAM and built a coalition called Friends’ of Penang Hill which included Aliran, ABIM, Workers Union, and USM academicians. Almost 20 groups worked together. This campaign built up and the petition was very successful with people writing in their objections.

However the local press was indifferent. The foreign press on the other hand was interested. The General Elections was held in 1992 and what turned into our favour was that the CM lost his seat. The DEIA was rejected and by that time the government decided to scrap the project.

What is relevant in this case? The Hills are now scarred. There are a lot of illegal farms but this can reforested. But once you have a permanent building for residential purposes, this is irreversible. We may not be able to see the green of Penang.

Dr. Lim Mah Hui commented that the Penang civil society had successfully overturned two massive projects in Penang Hill and Penang Global City Centre. It is hoped we can reverse the problem with our hills now.

Next, Dr. Ti Lian Geh presented on what is happening on Bukit Kukus in Paya Terubong. He showed many pictures and videos of the deleterious effects of hill rape. In contrast, he also showed virgin hill in Paya Terubong, located immediately right behind existing housing estates on the opposite side of the road. A picture showing sustainable hill development, with lots of greenery, houses built apart, hill still functional, clean, green, and serene was also presented.

He showed a picture of Pine Residence on Bukit Kukus with a twin 32-storey skyscrapers. Another three blocks of 47storeys project + 1 block 41-storey were proposed to be built on Bukit Kukus. Prior to this, the developer started selling the earlier approved project of 3+3-storey country homes. They faced difficulty selling because the hill is too steep, probably with slopes above 45 degrees.

Since they could not sell, the developer negotiated with the state government to convert the hill from low-density development zone to high-density development zone. In return the developer surrendered part of their land to the state to build a road from Bukit Kukus to Relau. The upgrading of the zone is a win-win arrangement for the developer and the state government but it poses serious safety issues to the existing housing estates immediately next to it.

The developer started earthworks/digging before approval was given, leading to lots of complications such as repeated mudslide/overflow and siltation of the flood mitigation pond and flash flood. Several stop work orders were issued by the Council.

Lebuh Lebuh Rambai 1 which was a road meant for the residents was opened for access to the developer for earthwork in Bukit Kukus without seeking consent from the affected residents.

Earthwork was started against the wishes of the residents. No thought was given for safety. Rock-blasting was carried out with no prior notice, no warning siren and no policeman guarding the site. Flying rocks scattered all around, hitting and breaking the roofs of several houses and nearly hit a serviceman who was on duty on lower ground. A police report was made by affected residents. Rock blasting must be approved by the Police and Geoscience Department.

There was evidence indicating illegal acquisition of rock blasting license from both the Police Department and Geoscience Department. This incident was mentioned during the objection session chaired by the Mayor. The Mayor was surprised and mentioned that rock blasting is legally inappropriate within 500 feet of existing housing estate. But in this case the houses are only about 100 feet away.

Following the commencement of earthwork, whenever there was a heavy downpour, serious soil erosion occurred and massive mud overflowed into Lebuh Rambai 1 and the nearby houses. Lebuh Rambai 1 would turn into a river of Teh Tarik. The mud ended up in the Flood Mitigation Pond. The siltation of mud in the Paya Terubong flood mitigation pond rendered the pond dysfunctional. If heavy downpour continued, flash flood would hit the lower downstream areas in Datuk Keramat. A stop work order was issued and the developer was asked to excavate the mud in the pond.

Don’t blame God when humans destroy the functions of forested hills. A retention wall cannot replace the roots of trees. Water is naturally retained and slowly released in a natural hill covered with trees and vegetation. There would be negligible soil erosion.

Not long ago landslides occurred in Paya Terubong. This should serve as a warning against excessive hill development. A picture of landslides from 2014 was shown as a reminder. After the Highlands Tower tragedy in Ulu Klang in 1993, the price of condominiums tumbled but human memory is short. Not long after that, it went up again.

Although there is requirement for a DEIA, the developer pays for the DEIA, so the report is not independent. The risk of building collapse increases exponentially with the gradient of the hill. We should not build on steep slopes. The risks of landslides and building collapse are more affected by slope gradient than height of hill. Potential buyers should avoid buying houses on projects on steep hill slopes that are poorly planned. Why should anyone pay big bucks for houses on steep slopes and worry the rest of their life over safety?

Martin Luther King said,

“Our lives begin to end the day we become silent about things that matter. The ultimate measure of a man is not where he stands in the moments of comfort and convenience but where he stands at times of challenge and controversy.”

SAVE OUR HILLS
OUR HILLS MATTER
THE DAY WE BECOME SILENT
OUR LIVES BEGIN TO END

3.30pm: Are our hills being protected by the government? Ir. K.K. Lim

A major point on safety guidelines is that while it is technically possible to build safely on hill slopes as is done in Hong Kong or its equivalent, many conditions must be present before this can happen. We need to ensure that right development policies, tools, expertise, monitoring capability and all other necessary building blocks are on par with that in Hong Kong if we are considering of having her as a benchmark and or meeting all the necessary safety requirements. Hong Kong has over 200 engineers in its Geotechnical Department and each slope is tagged and assigned to engineers who are responsible for its safety. Are we ready for it? Also the environmental costs must be considered as this is not simply an engineering issue. Development on the sensitive hill land is technical and can be done.

The over-riding question is do we want it and is it necessary?   Are we responding to development pressure or developers’ pressure? These questions are simply not for an engineer to respond.

It was stressed that the present method of doing environmental and engineering impact assessment for individual projects in isolation is faulty. Presently for hill development, engineers quite often are only look at the impact of their own projects and within its property boundaries, not the total cumulative impact of other surrounding projects. For example, soil tests and soil investigations are normally only carry out within the property boundaries. While each individual project may pass the requirements of a geophysical test, but when taken together cumulatively, the geophysical impact may be vastly different.

We must implement this holistic analysis as one of the conditions to ensure the well being of the hills as a whole. Another question here is, are we ready for this holistic analysis yet and who is looking after or responsible for the stability and safety of the hill or hills as a whole.

Furthermore, it is paramount important that slope stability and safety measures for the entire process of construction from beginning to end must be adequately budgeted, spent correctly and closely monitored at any one stage.

The dangers of mudslides and landslips during construction are real.

Ir. Lim shared the Highland Towers development and tragedy in December 1993. He showed a video and explained the causes of the collapse of the apartment block. Behind the Towers was a small stream of water and in 1991, construction for a new housing development project commenced on the hilltop located behind the Towers. Over the years and due to rain, water content in the soil became over saturated, and led to erosion, slope failure and landslide that brought the tower block down.

3.50pm: Q & A moderated by Laurence Loh

1. What should be the limit of development on hills? Is one house per acre suitable?
The Structure Plan states where land can be developed in a general form. Then there is the zoning plan of 1996 where it is designated whether an area is for residential purposes. The Structure Plan states that anything above 250ft can be developed if it is a “special project”. If you want to change zoning, it can be done. It goes through the local authority, state planning committee and then the EXCO. Density can also be increased.

2. Tajol of MNS posed a question regarding regulations, i.e., in the EIA procedure, once the DOE gets feedback from the public, do they have to respond to the public on how their views were taken into consideration? Let’s say you are a developer and you follow all the rules when you submit your project proposal for approval, can the authority say no or must it approve?

Ahmad: You write and submit your comments on the EIA but then one is not sure what happens after that.

Dr. Leong: This is a contentious point. The EIA process has been weakened. Now it seems to be a token show of public participation. Earlier on, it proposes that there has to be a public hearing. But there is no legal recourse in Malaysia to compel the developer or government to respond to all the points brought up by the public. But in the USA, 10% of EIAs are contested in court because people are not happy with the response given. Unless we have this recourse, we won’t get proper feedback. Example is the DEIA for the Seri Tanjung Pinang 2 reclamation project where Penang Forum submitted 22 pages of comments but received no response on this.

Ir. Lim: For private development projects, if all necessary requirements are strictly followed, and engineering and architectural concerns are all fulfilled, they must be approved. If the land use is already written and approved, and you strictly follow the by-laws and regulations, it should be approved. Similarly from the engineering point of view, area of capacity with proper sanitation, piping, drainage, then should be approved. The authority can choose not to approve but then this would be dangerous as you have a sole authority to approve or reject a project proposal.

3. Tan Hai Lee: Most of the slides shown were regarding failure of slopes. It looks more like a lack of enforcement and measures taken for slope protection. We must not cut second slope before the first slope is protected. So, where is our enforcement? In terms of restriction of height, if we consider development in Taman Melawati and Damansara, they are above 250ft but development is allowed. The restriction requirement of development above 200ft in Penang is low. As for the restriction of development above 25 degree gradient, Bukit Relau for example, depending on which way we approach the hill, the gradient differs. There are many development projects on hills and highlands elsewhere, for example, in Cameron Highlands, Raub, Genting Highlands.

Ahmad: The discussion today is not whether you should build above the height of 250ft or 25 degrees slope. There is a law which specifies that but the government is blatantly disregarding or not observing the law.

Ir. Lim: From design and construction point of view, yes, you must protect the first slope before cutting the second slope. A lot of contractors are not qualified and methodology and sequence of work are not done or submitted. Unlike in Singapore, UK and the Europe they are strict. The contractor submits many plans and the sequence of work must be shown to ensure safety not only at design stage but at all times. We lack this here.

We must observe that at any one time, the development must be safe from the perspective of the environment, safety and public point of view. Whose responsibility is this? The engineer is supposed to be responsible. The government formulates the law and regulations that have to be adhered to. The CIDB was formed to ensure that the engineers and supervisors on site are qualified. For projects of certain sizes, there is requirement on number of engineers, qualified personnel to ensure environmental protection and safety. The developer is responsible to ensure there is a competent person on site. If we run a lot of projects, generally a lot of things are often overlooked because it is so competitive, hence sacrificing safety. Problems can thus occur.

Dr Leong: The law exists and if we think it is not a good law, we must lobby to change the law. Look at hill land areas in Selangor where it has classified which are ecologically sensitive area and therefore cannot be developed. Until that is done it will not be a fair law. We must attempt to classify the hills. This should be in a local plan. For now there is no local plan governing development, where buildings should be constructed, or how high these should be. Not sure why local plan which was approved in 2008 is not executed yet.

4. Dr. Kam had queried whether Bukit Relau aka “Bukit Botak” was rezoned or not. NST article said hill was rezoned. YB Chow said remedial work is going on now. What if it is part of the earthworks for their project, shrouded in secrecy as remedial works? MBPP has the power to enter land and do remedial works and charge the developer. Why is MBPP not doing that?

Dr. Leong: Agree that remedial work must be done. The Council decided to ask the developer to do the remedial work. It asked some members of Penang Forum to recommend for restoration work and recommendations were accordingly submitted. Work should be carried out to restore and recreate back what it was previously. Subsequently, we found that there is a road built to go to the restoration area. Only MBPP can answer these questions. With the help of drones, we can obtain information for appropriate action to be taken. Some hikers have walked up there and found that measures taken were token. It is quite clear that these measures are made only to appease MBPP for a while. It is clear that the road building is an intention to continue their housing project.

5. Nicholas – resident in Sungai Ara: The planning permission for high-rise development on hill land in Sungai Ara had been submitted to the Council. The residents appealed and the matter was taken to the Appeals Board. The Appeals Board has yet to deliver a decision although it has been some years now. Apart from this, the planning period and the guidelines for hill site development in the Structure Plan have expired. Can the developer resubmit if the Appeals Board has yet to decide? What if the decision is in favour of the developer?

6. Dr. Jayabalan (ADUN for Batu Uban): We have repeatedly asked the question regarding the “Bukit Botak”. The answer we get is that mitigation work is going on. Our question is why do we need access road from the other side to do mitigation work? You can take a drive and see, it is not mitigation. It is rape!

7. Lawrence: Preventive and therapeutic measure is the EIA. What is the criterion? Do they have some standards? Do we have geophysicist to test every plot of land that will be developed?

Dr. Leong: Not many people regard the EIA seriously. There are many weaknesses. It will not serve much. It is flawed. Firstly, who pays the EIA consultant? It is the developer. Who reviews it? Internally, it might be a couple of junior officers who might not be competent or know all the aspects. No accountability, no penalty or liability of EIA consultants. We need to relook at the EIA, review the approval process and subject it to legal process as well. There are a series of steps to rectify the weaknesses. EIA is also project-based. It should be subjected to legal challenge. There are also instances where they can get away even with a preliminary EIA. Some prescribed activities for preliminary EIA can be requested for a DEIA to be submitted but this is up to the discretion of the DOE.

Ir. Lim: We often mix up who are the authorities and the government. The law is there, for example, requirement for a deposit or down payment for rectification works to be carried out. But enforcement is lacking. Very often when overseas investor comes in, the contractor says that these investors are stricter than the government. We must follow international standards to be competitive.

8. Hee (or is it Lee?): I wish to express that development on hill land for farming of vegetables is problematic as well. The land is barren, bringing about soil erosion, and the soil is contaminated with pesticides and fertilisers. The water system is disrupted and affects water catchment areas too. I am fighting all alone. The face (appearance) of Penang Hill is now all vegetable farms. I have written letters to the CM with photographs showing illegal clearing for vegetable farming which is ever expanding. What is the Land Office doing? I have not received a response. I have emailed to State EXCO YB Phee Boon Poh. Until today I don’t see that they are serious in protecting our hills. I have also approached many channels including the media. I hope the forum can make a strong stand and take action on illegal clearing for farms in Penang Hill and everywhere else.

4.30 pm: Botak Hill: Does anyone really know what is happening? – Anil Netto

29 November 2015 – In the march against climate change organized in Penang there were 75-80 persons participating. A good angle to pursue with regard to the development on hills in Penang is the impact on the climate. In Penang, we have one of the earliest warnings on climate change. Long before anyone had heard of climate change in 1848, James Richardson Logan was already warning of the perils of a “war with nature” and its impact on the ecological balance.
Quoting Logan:

“The great extent to which the plain of the mainland of Pinang has been shorn of its forest would of itself produce an urgent necessity for a stop being at once put to a war with nature, which must entail severe calamities on the future.”

The Botak Hill story began three years ago. We were too busy to notice what was happening.

On 30 April 2013, the Penang Forum Steering Committee received an email from Loh-Lim Lin Lee stating that something was happening with Botak Hill. It was election fever, and not much attention was paid to what was happening to Botak Hill. Anil showed some slides chronicling the degradation.

On 1 June 2013, MPPP revealed the name of the company responsible, i.e., General Accomplishment Sdn Bhd, reportedly a dormant RM2 company. I then raised the question in my blog: “Has rezoning been granted to the landowners to convert or reclassify this hill-top land from hill-land to residential use – and if so, how was this done?”

On 11 July 2013, a RM30,000 fine was slapped on General Accomplishment by the Penang Sessions Court for failing to submit earthworks plan as required under Section 70A of the Street, Drainage and Building Act 1974.

On November 18, 2013 the tycoon Tan Sri Tan Kok Ping, whose company illegally cleared parts of Bukit Relau, vowed that development would not happen on that land. He said although he was not aware of the land clearance, he would ensure there would be no development on the hill. He claimed that the management cleared the land without his knowledge and had wanted to build a road to monitor the land.

Then on 19 April 2015, a news report revealed that Botak Hill was rezoned for housing. The land was around 1,000ft. The rezoning was approved by State Planning Committee chaired by the Chief Minister.The NST reported:

“In the letter dated 3 December 2012, the state Town and Country Planning Department informed the landowner, General Accomplishment Sdn Bhd, that: Their appeal to rezone the 986m (sic) hilltop was approved by the State Planning Committee (SPC) on 20 November 2012. Based on the decision by the SPC No. 10/2012 and approved on 3 December 2012, we state that the committee agrees to approve the application to rezone the area to housing,” the letter read.

In April 2015, MBPP announced that mitigation measures include the building of a few catchment and sedimentation ponds along the access route to the site, cutting the slope to reduce its steepness and covering the exposed slope with vegetation…. building of cascading drains along the access route to dissipate the energy of surface runoff and mitigate soil erosion.

But we could see that a road had appeared and there was flat land on top of the hill. MBPP explained that the land cutting was done to allow access for heavy vehicles and to carry out rock blasting. It said huge boulders needed to be removed to ensure a safe route and for the mitigation works to proceed.

What could happen next? Botak Hill land has already been converted from hill-land to low-density housing. From hill land to Botak Hill will it be Bukit Perumahan?

Anil showed more photos and then another case, unrelated to Botak Hill, i.e., Beverly Heights on Bukit Gambier. The website beverlyheights.my states:

“Nestled within a serene 4.1-acre hill land of lush greenery on an elevation of 110m above sea level, against a naturally preserved backdrop that extends to 170m above sea level, Beverly Heights offers the utmost privilege of upscale living in a truly secluded area within affluent nature that is bound to bring an abundance of prosperity and good favours to the discerning few”.

The height of 110m is 360ft where 17 bungalows costing RM4.8 – 6.3million would be built. The plan was received on 7 Dec 2012 and approved by the OSC on 5 February 2013. The argument that is often given is that Penang is running short of land for affordable housing. However, the housing that has been advertised is not affordable to most people.

We must ask the MBPP what sort of mitigation work is being carried out on Bukit Botak.

4.45pm: Hill offenders: Fine, Jail, Nothing? Dato Agatha Foo & Mohideen Abdul Kader – lawyers

Dato’ Agatha Foo made a comparison between two laws which prohibit illegal hill clearing i.e. Street Drainage & Building Act (SDBA) and the Town & Country Planning Act (TCPA).

The SDBA Section 70A(1) states that No person shall commence or carry out or permit to be commenced or carried out any earthworks without approval and Section 70A(9) states that Any person who contravenes Section 70A shall upon conviction be guilty of an offence and shall be liable to imprisonment … or fine…. or both etc.

Whereas the TCP Section 19(1) states that No person shall commence, undertake or carry out any development without planning permission and Section 26(1)(b) states that A person who commences…. or permits to be commenced … in contravention of Section 19 commits an offence and is liable on conviction to a fine… or imprisonment … or both etc.

The SDBA talks about earthworks whilst the TCPA talks about development. Both Acts refer to persons.

So what if the offender is a company? Section 3 of the SDBA states that A “person” includes a company and the Subordinate Courts Act, Sch 3 stipulates that Where any corporation is guilty – the Court can imprison any officer of the corporation who caused or wilfully permitted or contributed to the offence & also fine the corporation.

Whereas Section 52A of the TCPA states that Where offence is committed by a body corporate, its director, manager, secretary, or similar officer .… as well as the body corporate shall be deemed to be guilty unless he proves that the offence was committed without his knowledge or that he took reasonable precautions to prevent it.

Basically, under these two Acts a company can be fined AND its director/ officer imprisoned.
Who to charge when Company commits an offence? Prosecutor can charge: (1) company; and (2) director/ manager/ other similar officer. The Court can :(1) fine company; and (2) jail director/ manager/ similar officer.

In terms of onus of proof, under the SDBA, the Prosecutor has to prove that both the company and its director/ officer committed the offence (i.e. guilty). The Prosecutor has to prove that the director/ officer caused or willfully permitted or contributed to the offence by his act or omission.

Whereas under the TCPA, the Prosecutor has only to prove that the company committed the offence (i.e. guilty) and director/ officer shall be deemed to be guilty unless he proves that the offence was committed without his knowledge or that he took reasonable precautions to prevent its commission. Hence the onus is on director/ officer to prove that he is “innocent” (i.e. had no knowledge or has taken precaution to prevent it). Therefore, it is easier to charge the director/ officer under the TCPA if you want to impose a prison sentence.

In the past, the Local Council has been prosecuting only under SDBA. Many offenders have pleaded guilty and the court tends to be more lenient when they plead guilty hence they often get away with a minimal fine of RM10,000. Very few were penalized with the maximum fine of RM50,000.

So NGOs have asked the Local Council to charge offenders under the TCPA and to ask the court to impose stiffer penalties up to the maximum fine of RM500,000 and jail sentence..

Both “Earthworks” (SDBA) and “Development” (TCPA) include hill clearing. In Section 70A(18) of the SDBA, “Earthworks” includes excavation, levelling, filling or felling of trees, or dealing with or disturbing any land etc. Under the TCPA Section 2: “Development” means … engineering operation or making any material change in the use of land etc. “Engineering Operation” includes formation or levelling of land or laying out means of access to a road etc.

The purpose of Section 19 of TCPA (which prohibits unauthorized “development/ engineering operation”) read together with Sections 21A, 21B & 22 is to regulate/ prohibit development or engineering operation (including earthworks/ hill clearing) AND to protect & preserve the physical environment, natural topography, water catchment, natural features of the land, trees of a certain size, age, type or species & other vegetation etc.

For instance, when an Applicant applies for planning permission he must submit a Layout Plan under Sections 21A & 21B to show his proposed measures for protection of physical environment; measures for preservation of natural topography & landscape; measures for preservation & planting of trees; location & species of trees with a girth exceeding 0.8m & other vegetation; proposed earthworks, etc. Under Section 22(5) the Council can impose conditions to prevent damage to the land & its physical environment, natural topography & landscape, to prohibit removal/ alteration of any natural features, to prohibit felling of trees, to plant & replant trees etc.

Comparison of the two Acts:

The SDBA stipulates:

Penalty : Fine or jail or both
Max Fine: RM50,000
Max jail term : 5 years
Offence continues: RM500 per day
Prosecutor to prove guilt of director/ officer etc.
Landowner: deemed to have permitted the offence

The TCPA stipulates:

Penalty : Fine or jail or both
Max Fine: RM500,000
Max jail term : 2 years
Offence continues: RM5,000 per day
Director/ officer deemed guilty unless he proves that the offence was committed without his knowledge or that he took reasonable precautions to prevent its commission
Landowner: deemed to have permitted the offence

Hence the question is whether a fine is a deterrent? It is just a slap on the wrist for the offending developer who gains to profit more, and would have factored in the fines to the cost of the houses. Damage done is irreversible.

Will jail term stop illegal clearing? In Penang, thus far no company director/ manager/ officer has been jailed.

The Council can also under both the SDBA and TCPA issue an order/ notice to stop unauthorized work as well as carry out restoration work. The penalty for failure to comply is a fine or jail or both. The maximum fine under SDBA is RM50,000 and if the offence continues, the fine may extend to RM500 a day. Whereas under the TCPA, the maximum fine is RM100,000 and a fine up to RM5,000 a day for continuing offence,. Both the laws carry a jail sentence.

Agatha personally feels that the Council should prosecute under the TCPA.

Mr. Mohideen Abdul Kader conveyed thanks to the Penang Forum for holding this forum and was appreciative of the participation of people at the forum. There cannot be a change in policy and law if people do not understand and take action. He pointed out that Dr Lim Mah Hui has made speeches in the Council meetings. Mr Mohideen urged public prosecutors to use certain laws to deter irresponsible developers. He hoped that in future prosecutions, these laws will be applied.

If this meeting is to produce the desired result, we need to continue this process, educate our neighbours, friends, and family regarding on the importance of hills and to commit to preserve our hills. We need to set up a body to ensure this fight/struggle continues so that there is a real change in policy and law.

The state and MBPP were invited to participate but they turned it down. It reflected badly on the state government and politicians who seem to be antagonistic towards CSOs. They fail to recognize that we need good laws and engagement. An advanced country promotes good laws, enrich and engage through civil society organisations. CSOs come from different backgrounds and have a pool of knowledge that the government may not have.

The focus on economic growth now isbased on foreign capital and foreign labour. Does it protect the people and environment? We need a rethink on many policies which are not benefiting the people and not protecting the environment. There is no use of the current government to follow the way (bad practice) of the previous government.

Even when imposing a maximum RM50,000 fine, it is the house buyer who will be ultimately paying. The public is paying for the illegal act. If the developers want profit, they should go somewhere else. The developers who commit offences should be blacklisted. This will be a strong lesson for them.

People don’t realise the importance of the hills. For the business community, the hill is just a commodity. The hill has biodiversity which takes millions of years to form but within a few months all can be destroyed. Not many people in Penang are going to benefit from these projects but an elite few who could be foreigners.

Q & A session

Ti Lian Geh: We have come to a conclusion that our laws are insufficient, outdated and have loopholes. There are diligent ADUNS but no change. When we first go for objection meetings with regard to development in Paya Terubong, the ADUN for Paya Terubong claimed ignorance.

We went on three occasions, but the ADUN for Paya Terubong still pleaded ignorance. So residents went to the media. YB attended one of the gatherings where he was told off in his face that he is a representative and that we won’t vote for him in the next elections. We warned that the pro-tem committee will become a campaign committee to bring down the YB. We must have a groundswell and change of mindset. Lawyers must advise us. We need economic sanctions and to tell people not to buy houses that are not safe.

Q: Dalbinder – Has the council taken steps to blacklist General Accomplishment?

A: MBPP hasn’t done that. We must amend TCPA to include a provision that anyone who violates the law must be blacklisted. Administratively, we can make it problematic to approve projects. The problem is that the law is not being enforced.

Q: How long would it take to bring about legal reform?
A: Very slow and tedious. We have seen some changes but still it is not good enough.

Q: Hamdan – Are there any public interest litigation to reprimand people who are approving these projects? Citizens’ action may bring about changes. A lot of things happen in private chambers. I am wondering whether there are avenues such as in courts or provision of public referendum. We need to create a broader coalition. Save our Hills Campaign. We must go beyond the elections. We must have participation in the political process, of decision making.

Penang Island’s temperature has gone up 2°C within 60 years, higher than the global average. Encourage organizers to bring this to a broader participation. We are living in a digital age, we must take this campaign out of Penang, go global. Killing the golden goose will affect Penangites.

Dr. Lim Mah Hui showed a map superimposed with the number of high-rise buildings that have been approved between 2008 and 2015 on hill land 250ft and above, or slope more than 25 degrees. In Paya Terubong – 30 blocks, Teluk Kumbar/Balik Pulau – 9 blocks, Bayan Lepas – 15 blocks and Batu Ferringhi/Tanjong Bungah – 14 blocks.

5.30pm: What can we do? Moderated by Ahmad Chik

Penang Forum has been in operation since 2007. At first it was cagey; it did not want to rock the boat and wanted to give the state government a chance. What should we do now?

1. Hamdan – Collate all hill development and reclamation projects. Put it up in public domain so all can know what is happening to Penang Island. We are being compromised. Hamdan volunteers to sponsor a website for this purpose by donating RM1,000.

2. Propose that a delegation meets the CM to discuss this matter. Among them are Rebecca, Dr Ti, Tengku Idaura, Renji,..

3. Dr. Lim Mah Hui commented that Residents Associations have been working in isolation. He said they should meet as a group and be part of a larger coalition. Six RAs at the forum agreed to form a coalition. They will leave a contact number with Dr. Lim.

4. A representative from Tanjung Bungah Residents Association (TBRA) mentioned that in its 15 years the RA has tried various ways to stop dangerous hillside construction. They have named and shamed developers in Chee Seng Garden working on steep slopes and causing landslides. That led to stop-work orders but they only lasted for a few days and then operations continued.

They have held demonstrations, calling them tea parties since there are restrictions. That caused bad publicity for the company. But all these are temporary measures because council has given approval and the developers continue building. The Government must inform the public before approval is given. We must have access to local plan. All neighbours, not just the immediate ones, must be informed so they can object before approval is granted. For big developments, the whole community must be informed, so they can organise and present petitions to cancel or reduce the risks.

5. Rebecca Duckett – There are many concerned Penangites dedicated to saving the hills. There could be many who are willing to rally and contest the approval for development. How can we do this? We need a centralized area for sharing information and to spread the message. If members can pay RM10 a month, it could help maintain a website and spread the word. We must make our compaign global and launch petitions. With eyes on Penang, the government would probably take notice and take corrective measures. She will set up an Instagram account with pictures – on why we should save the hills. Photograph and one line description and #.

6. Dr. Chee Heng Leng – We must set up a committee. We must also reach out to Malay and Mandarin speaking population. We must translate the publications into Malay (Firdaus and Azrina from Seberang Jaya to assist), Mandarin (volunteer needed).

7. Dr. Ti shared that there is a “No to Paya Terubong Hill Development” facebook page. The link is: https://www.facebook.com/hillrape/ .

8. A resident from Sungai Ara shared their campaign experience and bringing of objections to the Appeals Board. There could be successful stories.

9. The committee members will comprise of Hamdan, Dr. Lim Mah Hui, CAP, Ti.

Dr. Lim Mah Hui then read out the pre-prepared Forum Declaration

FORUM DECLARATION

SAVE OUR HILLS

We, the Penang civil society community groups, and concerned individuals who participated in above public forum on 12 December 2015 at Dewan Sri Pinang,

Note three issues of grave concern:

1. Recent developments on the hills of Penang, where both legal and illegal cutting of the hills is taking place with increasing frequency and intensity, resulting in erosion, landslides, flooding, and loss of water catchment areas.

2. The indiscriminate cutting of hills goes against the Penang State Green policy to protect hill land. Yet, in its State Assembly sitting in November 2015 it was revealed since 2008, approval has been given for 56 housing projects in these ecologically sensitive areas. Many of these proposed buildings are over 30 and 40 stories high.

3. The revelation that there are 68 known cases of illegal hill cutting, reflecting ineffective monitoring and prosecution of these offenders.

We make four recommendations

1. Penang State government to adhere to its own GREEN policy to protect hill land by prohibiting any more new developments above 250 feet or greater than a 25-degree gradient, and reveal details of all “special projects” immediately.

2. Ensure independent environmental impact assessment conforming to strict environmental standards must precede every hill development project (per first Penang Forum held on 13 April 2008).

3. Penang State Government and Local Councils to prosecute the violators to the full extent of the law, including jail sentences, and to blacklist all offenders for future development projects.

4. Should offenders fail to restore the destroyed hills to their natural condition as required within the stipulated time frame, the authorities undertake the restoration work, all costs charged to the offenders, and further prosecute them for failure of compliance.

The forum ended at 6pm. The declaration was then translated into Bahasa Malaysia.

DEKLARASI FORUM
SELAMATKAN BUKIT-BUKAU KITA

Kami kumpulan masyarakat sivil, komuniti dan individu-individu prihatin Pulau Pinang yang telah mengambil bahagian di dalam forum pada 12 Disember 2015 bertempat di Dewan Sri Pinang,

Telah menggariskan tiga isu yang amat membimbangkan:

1. Perkembangan semasa di kawasan bukit-bukau di Pulau Pinang, yang mana pemotongan bukit sama ada yang sah atau tidak sah telah meningkat dengan mendadak dan masih lagi sedang berlaku, mengakibatkan hakisan dan runtuhan tanah, banjir dan kehilangan kawasan tadahan air.

2. Pemotongan kawasan bukit adalah bertentangan dengan Polisi Hijau Kerajaan Negeri untuk melindungi kawasan bukit lebih dari 250 kaki tinggi atau curam lebih dari 25 darjah kecuali untuk projeck2 istimewa. Namun persidangan Dewan Undangan Negeri yang telah diadakan pada bulan November 2015 telah mendedahkan bahawa sejak tahun 2008 sebanyak 56 projek perumahan telah diluluskan di kawasan bukit yang berekologi sensitif. Kebanyakan projek-projek perumahan yang telah diluluskan ini adalah bangunan melebihi 30 tingkat.

3. Pendedahan bahawa terdapatnya 68 kes pemotongan bukit secara haram membuktikan pemantauan yang tidak berkesan dan hukuman yang tidak setimpal kepada pesalah.

Maka kami sebulat suara memberikan four cadangan:

1. Kerajaan Negeri Pulau Pinang perlu mematuhi polisi hijau nya untuk melindungi kawasan bukit dengan mengharamkan sebarang pembangunan di kawasan melebihi 250 kaki tinggi atau curam 25 darjah serta melarang projek perumahan atau komersil di tanah tersebut sebagai projek istimewa.

2. Memastikan Penilaian Kesan Kepada Alam Sekeliling yang bebas dan mematuhi piawai alam sekitar yang ketat perlulah mendahului semua jenis pembangunan bukit (seperti yang telah dinyatakan di dalam Penang Forum pertama pada 13 April 2008).

3. Pihak berkuasa tempatan perlu tegas dalam mendakwa pesalah-pesalah dengan hukuman maxima yang di benar dalam undang-undang termasuk penjara dan menyenaraihitamkan pesalah-pesalah daripada diberikan sebarang projek pemajuan di masa hadapan.

4. Sekiranya pesalah gagal untuk melakukan pemulihan terhadap bukit yang telah dipotong dan mengembalikannya kepada keadaan asal dalam tempoh masa yang telah ditetapkan, pihak berkuasa perlu melakukan kerja-kerja pemuliharaan tersebut dan segala kos pemuliharaan kawasan itu perlu ditanggung oleh pesalah. Seterusnya pesalah terlibat harus didakwa kerana gagal mematuhi perintah.

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