Sungai Ara project breaches UN sustainable goals, Penang groups tell Sunway boss

Fourteen civil society groups and residents’ associations have endorsed a letter to Sunway Group chairman Jeffrey Cheah urging him not to proceed with a plan to build 600 homes on sensitive hill slopes in Penang.

We are public interest civil society organisations who write and endorse this letter and refer to the above matter.

As you are aware, Sunway City, which is a member of the Sunway Group, is undertaking a housing development project known as Sunway Hills in Sungei Ara, Penang, which involves housing development on sensitive hill land, that is land more than 250 feet (76 metres) above sea level and a gradient exceeding 25 degrees.

Sunway proposes to construct 600 homes comprising high-rise apartments and bungalows on hill lands covering 80 acres, about 43% of which are on slopes exceeding a gradient of 25 degrees.

The project is on Lot 14345, Mukim 12, Daerah Barat Daya, Pulau Pinang held under Geran No 81977, which was designated as “hill land” under the Land Conservation Act 1960.

However, on 21 December 2011, the state authority approved Sunway’s application for removal of the “hill land” status.

Planning permission (kebenaran merancang) was given by MBPP on 27 Feb 2012.

The Sungei Ara residents filed an appeal to the Penang Appeals Board against the decision of the Penang Island City Council (MBPP) on 27 March 2012.

On 27 January 2016, the Appeals Board upheld the objections by the residents who were owners of neighbouring lands against the approval of the project by the MBPP.

In the Appeals Board, Sunway City had argued that the MBPP had granted planning permission properly because the proposed development is a “special project”, under the Guidelines on Special Projects.

The residents argued that the sensitive hill lands are unsuitable for the development proposed.

The Appeals Board ruled that the MBPP was wrong in granting planning permission as it had failed to consider properly that (in this case), the primary objective of the Penang Structure Plan 2020 is to preserve hill lands; and only very limited and justifiable exceptions were allowed as special projects, which justification was lacking in the Sunway project.

Following the decision of the Appeals Board, the then Penang Chief Minister Lim Guan Eng had on 26 February 2016 at a press conference announced that the MBPP could now overturn the approvals given to similar hill-slope special projects approved by the previous Barisan Nasional government.

Thee National Human Rights Society (Hakam) and Penang Forum, who were invited to attend the press conference, applauded the state government’s support for the Appeals Board decision as it best served the public interest and sustainable development.

Sunway City filed a judicial review to the Penang High Court against the decision of the Appeals Board – and on 29 May 2017 the High Court decided in favour of Sunway City.

On 23 June 2017 the Sungei Ara residents filed an appeal to the Court of Appeal, challenging the decision of the High Court. They have named Sunway City, the MBPP and the Appeals Board as parties to this appeal.

The appeal is currently pending hearing at the Court of Appeal and will be heard on 26 March.

The Penang Structure Plan 2020 was gazetted on 28 June 2007 and states that the exception to the prohibition on hill land development is only for “special projects” but it does not define what they are.

The definition and the guidelines for special projects were approved by the present state government in 2009. How the special projects guidelines are to be interpreted is the bone of contention in the Sungei Ara residents’ case.

The former Chief Minister, Lim Guan Eng, in a press conference acknowledged that the Sunway City judicial review in the High Court “is expected to be the case of the century for planning law in Malaysia” and had blamed the previous government for approving projects on sensitive hill lands.

The residents’ appeal of the High Court decision has serious implications for all cases involving planning law in the country and must not serve as a precedent for other development projects on hill lands and environmentally sensitive areas.

The High Court, in ruling in favour of Sunway City, had among other things, held the project to be a “special project” – and hence an exception to the Penang Structure Plan. The judge in the case had also suggested that the structure plan “need not be slavishly complied” with by the MBPP.

These are serious matters of public interest which are being reviewed by the Court of Appeal.

Most recently, in the Court of Appeal, the Sungei Ara residents attempted to introduce a document which was a paper by the then director of the Town and Country Planning Department (JPBD) dated April 2009 on the “special project guidelines”, which was tabled before the State Planning Committee for its consideration. This document was not available during the hearing at the High Court nor was it introduced by the previous lawyers who were acting for the residents.  

The document would have supported the Sungei Ara residents’ understanding of the guidelines, as affirmed by the Penang Appeal’s Board – that for a housing project to be treated as a special project which is exempted from the application of the Penang Structure Plan 2020 (PSP), it must have been “previously approved…prior to the inception of the PSP.” This was not the case in the Sunway project, which was approved after the Penang Structure Plan came into force.

Instead of agreeing to the introduction of this document to help guide the Court of Appeal in interpreting the guidelines on special projects, Sunway objected to its introduction and succeeded in preventing the court from using this document to help the course of justice. By this conduct, Sunway has impeded a proper interpretation of the guidelines.

The Sungei Ara residents’ appeal has garnered the support of around 19 other residents’ associations and management corporations and committees in Penang, as the High Court decision has very serious implications not only for the immediate residents of the vicinity of the project but also for all citizens of Penang, who will be affected by development projects in environmentally sensitive areas, including on hill slopes and highlands in Penang.

We bring this matter to your urgent attention as we are seriously concerned about how and why Sunway is undertaking this project, when it appears to be clearly contrary to ‘sustainable development,’ given that it is on sensitive hill land.

Sunway Group’s corporate profile claims that “At Sunway, we are committed to the United Nations Sustainable Development Goals (SDGs), and continue to align our business strategies to meet the needs of our communities in line with the SDG agenda.” The vision of the group is “To be Asia’s model corporation in sustainable development, innovating to enrich lives for a better tomorrow.”

Sunway claims to be a champion of the SDGs. Yet, it is embroiled in this controversial housing project against ordinary residents in Penang. This case shows that Sunway does not practise what it preaches as regards the SDGs, as the housing development proposed cannot be regarded as being sustainable.

We therefore urge you to:

  • not proceed with this project;
  • abide by the Appeals Board decision on the matter and
  • not oppose the Sungei Ara residents’ appeal of the High Court decision.

We trust that you will look into our appeal above and look forward to your response urgently.

SM Mohamed Idris is president of the Consumers Association of Penang.

The following organisations also support this letter:

  1. Sahabat Alam Malaysia
  2. Third World Network
  3. Tanjung Bungah Residents’ Association, Penang
  4. Desaria Residents’ Association, Penang
  5. Taman Sri Rambai & Taman Lau Geok Swee, Paya Terubong, Penang
  6. Penang Heritage Trust
  7. Agora Society
  8. Aliran
  9. Pertubuhan Pelindung Khazanah Alam Malaysia (PEKA)
  10. Persatuan Aktivis Sahabat Alam (KUASA)
  11. Malayan Nature Society, Penang
  12. Penang Forum
  13. Women’s Centre for Change (WCC), Penang

By: Aliran

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