INTRODUCTION

The Town and Country Planning (TCP) Act 1976 provides for the setting up an Appeals Board in each State to hear and decide on cases referred to it by appellants dissatisfied with the decisions of local planning authorities.

The Penang State Appeals Board (Planning) was set-up and gazetted in 1989 and heard its first case in June 1992. It is the only such Appeal Board established in Malaysia to date (January 1996).

THE RIGHT OF APPEAL

The TCP Act 1976 provides that under the following circumstances, a person may submit an appeal :

1. Planning permission is refused or granted subject to conditions (s. 23(1)). The applicant for planning permission as well as objectors (where applicable) have the right of appeal.
2. Revocation or modification (s. 25(1)) of planning permission or building plan approval previously granted by the local authority. This right is with regard to the amount of compensation to comply with the notice (s. 25(9)). There is no right of appeal against the revocation or modification order itself.
3. A requisition notice is issued by the local planning authority (s. 30(2)). The notice may require the land owner to discontine any land use; or to impose conditions for the continued use of the land; or to require the relocation of any building or activity on the land. The right of the land owner under this action includes the right to appeal against the notice itself and the amount of compensation to recover the costs and expenditure due to depreciation of the value of property.

Appeals must be submitted to the Appeals Board.

THE APPEALS BOARD

The Act provides that an Appeals Board shall be established in each State (s. 36(1)).

Status and Powers

For the purposes of the Penal Code, the Appeals Board is considered a court of law (s. 36(14)). The Board may summon and examine witnesses and compel the production of any document that it believes to be relevant and material to the case (s. 36(10 & 11)).

Board Members

The Board members are appointed by the State Authority (s. 36(2)) with the concurrence of the Minister.

The Chairman and Deputy Chairman of the Board must have a legal background (judge, advocate and solicitor, judicial officer) while not more than 12 other members maybe appointed at the discretion of the State Authority.

The appointment of all Board members are for a duration of 3 years but maybe revoked at any time by the State Authority without the need to give reasons.

Decisions by the Board

The Board when in session sits as a 3-member court comprising the Chairman and any other 2 members selected by the Chairman. If for any reason the Chairman is unable to perform his duties, the Deputy Chairman assumes the duty and position of the Chairman of the Board.

Every decision of the Board is made by the Chairman in consultation with the other 2 sitting members. The Chairman is however not compelled to concur or agree with the views of any of its members. In other words the final decision rests with the Chairman but the Chairman must record the reasons for disagreeing with other members of the Board (s. 36(9)).

The decision of the Board is final and cannot be challenged in any court of law (s. 36(13)). However, the Board is not immuned from judicial review if the decision is contrary to the law. This may arise if the Board contravenes rules of natural justice, acts on invalid laws, acts outside of its jurisdiction, makes decisions based on irregular or improper evidence or grounds, makes a wrong interpretation of the law or does not take into account matters which it is required to take into account .

THE PENANG APPEALS BOARD

The Penang Appeals Board is headed by former Federal Court judge, Tan Sri Chang Min Tat as Chairman while Rumi J. Manecksha (lawyer) is the Deputy Chairman. There are 10 other members comprising mostly lawyers and doctors and eminent citizens of the state.

The Registrar of the Penang Appeals Board is an Assistant Director of the Penang State Town and Country Planning Department located at Level 19, KOMTAR, 10000 Penang. The Registrar functions as the secretariat and administrator of the Board.

More than 60 cases have been filed with the Penang Appeals Board since 1991. About 20% of the cases were withdrawn for various reasons. Of the cases decided by the Board, about 30% were successful (appeal allowed), 6% of the appeal cases were referred back to the local planning authority for reconsideration, and 64% were unsuccessful (appeal rejected).

CASES IN PENANG ISLAND

By law, the local authority is the local planning authority (LPA). In case of Penang Island, the local planning authority is the Municipal Council of Penang Island (commonly referred to by the Malay acronym MPPP).

The following is a brief account of the cases decided by the Board for the MPPP area (arranged according to chronological order of decision):

(NOTE : This section is still being developed)

Appeal Allowed

1. LR/PP/15/92 Loh Moh Sun (Appelant) - appeal against the LPA decision not to permit 5 storey flats in Tanjung Tokong Town. The LPA relied on its Draft Local Plan which specified that development or redevelopment at the site must be compatible with the existing housing type, design. character, height and density. The Board took the view that it was not improper for the LPA to consider and be guided by the provisions of the Draft Local Plan. Appeal dismissed on 3 July 1993.
   
   
2. LR/PP/2?92 M/s Garden Court Sdn. Bhd (Appelant) - appeal against the LPA decision not to permit development of flats in the Jesselton area. Jesselton is an up-market real estate where terrace houses and even semi-detached houses are prohibited. Appeal dismissed on 16 July 1993.
   

Appeal Dismissed

1. LR/PP/16/92 M/s Leong Seng Construction (Appelant) - appeal against the LPA decision not to permit 5 storey flats adjacent to the St. Xavier's Primary School in Georgetown. The reason for refusal of planning permission was that the development site is in an established area for mainly 2-storey houses, i.e. incompatible with character, density and height of the area. Appelant submitted it had complied with all MPPP's guidelines. In considering the case, the Board made several observations : (i) it concluded that the appelant had complied with density limits; (ii) there was no existing height control in the area; (iii) the height difference of the proposed development with the existing school was only 22 feet; (iv) there existing multi-storey buildings in the immediate neighbourhood; (v) there was no disharmony with nearby buildings; (v) the LPA must have regard to future development or trends; and (vi) it was of the opinion that congestion arising from the proposed development would be limited. Appeal allowed on 29 December 1993.
   

Case Referred Back to LPA

CASES IN SEBERANG PERAI

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