terbitan kes tahun 1992 lembaga rayuan negeri pulau...

1

Terbitan Kes Tahun 1992

LEMBAGA RAYUAN

NEGERI PULAU PINANG

Volume 2/2011

2

Dilancarkan oleh

Y.B. TUAN WONG HON WAI

PENGERUSI JAWATANKUASA MMK

PERANCANGAN BANDAR DAN DESA & PERUMAHAN & KESENIAN

JABATAN PERANCANGAN BANDAR DAN DESA

NEGERI PULAU PINANG

3

ISI KANDUNGAN

1. PERUTUSAN YB TUAN PENGERUSI PERANCANG

BANDAR & DESA, PERUMAHAN DAN KESENIAN

2. PRAKATA

3. RAYUAN NO: LR/SP/4/92 1 - 2

4. RAYUAN NO: LR/SP/6/92 3 - 4

5. RAYUAN NO: LR/SP/11/92 5 – 7

6. RAYUAN NO: LR/SP/12/92 8

7. RAYUAN NO: LR/SP/15/92 9 – 11

8. RAYUAN NO: LR/SP/16/92 12 – 14

9. RAYUAN NO: LR/SP/18/92 15 – 17

10. RAYUAN NO: LR/SP/22/92 18 – 19

11. RAYUAN NO: LR/SP/25/92 20

Jilid Terbitan Kes Lembaga Rayuan Negeri Pulau Pinang ini merupakan satu usaha yang

penting. Kes-kes yang telah diputuskan di Lembaga Rayuan sejak 1990an dijilidkan dan

diterbitkan untuk pengetahuan orang ramai. Terbitan ini bukan sahaja akan menjadi bahan

rujukan kepada pengamal undang-undang, ahli akademik dan juga memberi manfaat

kepadaprofesional yang terlibat dalam perancangan. Ratio decidendi dalam keputusan ini

akan menjadi panduan kepada orang ramai bagaimana sesuatu keputusan Lembaga Rayuan

dicapai berasaskan undang-undang dan fakta.

Lembaga Rayuan di Pulau Pinang adalah antara Lembaga Rayuan yang aktif di Malaysia.

Ini sejajar dengan kedudukan Pulau Pinang sebagai satu negeri yang pesat dalam

pembangunan. Negeri Pulau Pinang juga mempunyai kumpulan aktivis serta individu yang

aktif dalam memberi pandangan kepada authoriti dari segi isu-isu pembangunan dan

perancangan. Ini merupakan petanda yang positif memandangkan kayu pengukur kejayaan

sesebuah negeri bukan hanya bergantung kepada kepesatan pembangunan tetapi juga tahap

penyertaan orang ramai dalam hal-ehwal awam.

Dewan Undangan Negeri Pulau Pinang pada persidangan November 2011 telah

meluluskan Rang Undang-Undang Kebebasan Maklumat Negeri Pulau Pinang. Ini

merupakan satu perundangan yang penting memandangkan halatuju pentadbiran Negeri

Pulau Pinang ialah supaya ketelusan dari segi pentadbiran Kerajaan Negeri dapat

dipertingkatkan. Ini sejajar dengan Prinsip Competency, Accountability dan Transparency

yang dipelopori oleh Kerajaan Negeri.

Maka, usaha Terbitan Kes Lembaga Rayuan Negeri Pulau Pinang mulai dari volume 1 dan

2 untuk keputusan tahun 1991 dan 1992 ini sejajar dengan halatuju ketelusan maklumat

yang dipelopori.

Ini juga merupakan satu usaha berterusan untuk memartabatkan Lembaga Rayuan di Pulau

Pinang sebagai satu entiti yang berwibawa dan berkecuali. Saya bagi pihak Kerajaan

Negeri mengalu-alukan Terbitan Kes Lembaga Rayuan Negeri Pulau Pinang dan juga jilid-

jilid yang berikutnya.

YB Wong Hon Wai

Ahli Majlis Mesyuarat Kerajaan Negeri Pulau Pinang

(Perancang Bandar & Desa, Perumahan dan Kesenian)

PERUTUSAN YB TUAN PENGERUSI

PERANCANG BANDAR & DESA, PERUMAHAN

DAN KESENIAN

5

PRAKATA

Terbitan Kes Lembaga Rayuan Negeri Pulau Pinang Volume : 2 merupakan himpunan

Kes-Kes Lembaga Rayuan Negeri Pulau Pinang yang telah difailkan pada tahun 1992.

Sepanjang tahun 1992 tersebut, sebanyak 26 kes di bawah peruntukkan Perenggan

23(1)(a) Akta 172 telah difailkan di Lembaga Rayuan yang mana 4 daripadanya

melibatkan pihak Majlis Perbandaran Pulau Pinang (MPPP) sebagai responden manakala

selebihnya iaitu 22 kes melibatkan Majlis Perbandaran Seberang Perai (MPSP) sebagai

reponden. Ingin ditegaskan bahawa berdasarkan jumlah keseluruhan kes rayuan yang

telah difailkan, sebanyak 5 kes telah dibenarkan dan berpihak kepada perayu. Sebanyak

11 kes telah ditolak dan 8 kes telah ditarik balik. Namun hanya 9 kes sahaja yang

diterbitkan ini kerana kes-kes yang mempunyai keputusan bertulis. (seperti Lampiran 1)

Sepertimana Terbitan Kes Lembaga Rayuan Negeri Pulau Pinang Volume : 1, yang

membariskan ahli-ahli panel seperti Y.Bhg. Tan Sri Dato’ Chang Min Tat, Y.Bhg. Dato’

Khalid Ahmad Bin Sulaiman, Y.Bhg. Dato’ David Choong Ewe Leong, Dr. Ong Hean

Tee, Puan Hajjah Saleena Bt Yahaya Isa dan En. Lee Kok Kiang, terbitan kali ini juga

akan menyenaraikan panel-panel yang berkaliber yang telah melaksanakan

tanggungjawab dengan adil dan telus. Antara barisan ahli-ahli panel yang dimaksudkan

adalah Pengerusi Lembaga Rayuan Negeri Pulau Pinang sendiri iaitu Y.Bhg. Tan Sri

Dato’ Chang Min Tat, Puan Hajjah Saleena Bt Yahaya Isa, Encik Peter Oon Peh Tchin,

Y.Bhg. Dato’ David Choong Ewe Leon, Dr. Ong Hean Tee, Y.Bhg. Dato’ Khalid Ahmad

Bin Sulaiman, Encik Natha Singh, Tuan Haji Ghazi Bin Ishak dan Dr. Radin Haji

Muhamad Amin Bin Radin Haji Hadi Munir.

Bagi terbitan kes Lembaga Rayuan Negeri Pulau Pinang pada kali ini, pembaca boleh

melihat sendiri betapa isu-isu perancangan seperti percanggahan gunatanah,

pembangunan yang melebihi ketumpatan yang dibenarkan, ketidakpatuhan kepada

keperluan perancangan, isu askesibiliti serta isu-isu tanah telah mempengaruhi sesuatu

keputusan yang telah dibuat. Walaupun dari segi jumlah kes yang ditolak lebih tinggi

berbanding kes yang dibenarkan namun harus dilihat bahawa setiap keputusan yang

dibuat itu mempunyai asas-asas yang kukuh dan wajar setelah hujah-hujah kedua-dua

pihak diambil kira.

Melihat kepada senario tersebut jelas menunjukkan bahawa Lembaga Rayuan merupakan

satu tribunal berkecuali dan telus dalam mendengar, mempertimbang dan membuat

keputusan terhadap kes-kes yang telah difailkan tanpa dipengaruhi oleh kepentingan-

kepentingan lain. Kepada anda yang bercadang untuk mendalami perundangan berkaitan

perancangan bandar dan desa khusunya di Negeri Pulau Pinang, maka rujukan ini adalah

pilihan yang terbaik untuk anda semua. Selamat membaca.

Dari Meja Penerbit,

Bahagian Korporat dan Lembaga Rayuan

Jabatan Perancang Bandar dan Desa

Negeri Pulau Pinang

Disember 2011

6

DALAM LEMBAGA RAYUAN NEGERI PULAU PINANG, MALAYSIA

NO. RAYUAN LR/SP/4/92

RAYUAN TERHADAP PERMOHONAN KEBENARAN MERANCANG PINDAAN UNTUK

MENGUBAH SEBUAH KILANG BERAS KEPADA KILANG MENJAHIT DI ATAS LOT

876, 5774 & 5773, MK.15, SPT

Di Antara

TETUAN SETIAKAWAN KILANG BERAS SDN. BHD

Dan

MAJLIS PERBANDARAN SEBERANG PERAI

DECISION

The appellant's application to convert its rice mill built on lots 876, 5774 and 5773,

Mukim 15, Seberang Perai Tengah into a sewing factory was rejected on three

grounds. As stated by the appellant, they were :

1. The lots lie outside the industrial zone

2. The factory is too near a school

3. The land has been zoned for residential purposes

The rice mill was built in 1968 with approval of the Majlis Daerah Tengah Seberang

Perai. A licence for the operation of the rice mill had also been obtained. It is the

contention of the appellant that ever since it had obtained yearly the renewal of the

rice mill licence and at the hearing it was able to produce the licence for 1994.

With the disappearance of the padi fields in the locality, the need for a rice mill

disappeared and in 1989, the appellant applied on May 30, 1990 to MPSP, the Local

Planning Authority for the whole of Seberang Perai, to convert its rice mill to a

sewing factory.

An ad-hoc committee on planning and industry did not, at its meeting on January 5,

1991, recommend the conversion as the lots were located outside the industrial zone.

Though action taken under s. 21(6) Town & Country Planning Act, 1976 did not result

in any owner of adjoining lands lodging objection against the application, the District

Land Administrator however was not in favour of the application on the ground of its

proximity to Sekolah Kebangsaan Juara, Ceruk Tok Kun.

On January 23, 1992, MPSP rejected the application and the appellant was informed

by letter dated February 11, 1992.

FAKTA KES Pengerusi : Y. Bhg. Tan Sri Dato' Chang Min Tat

Ahli-Ahli Panel : Y. Bhg. Dato' Hajjah Saleena bt. Yahaya Isa

Mr. Peter Oon Peh Tchin

Perayu : Mr. Leong Sing Cheong, counsel

Responden : Puan Noriza bte Abdullah

Puan Rosnada bt. Abu Hassan

Mr. Amin bin Ismail

Keputusan : Rayuan Di Tolak

Tarikh Keputusan : 16 Mei 1994

RA

YU

AN

NO

: L

R/S

P/4

/92

Terbitan Kes

Lembaga Rayuan Negeri Pulau Pinang Volume 2/2011

1

7

It is clear to us appeal that the original mill was built on agricultural land and did

not contravene any provision of zoning or planning. It now offends against zoning

because the land has now been zoned for residential purposes. Interestingly, the

land lying on the other side of the road, Jalan Rozhan, which the mill fronts, is

zoned for industrial purposes. What this means of course is that merely by a

decision of the local planning authorities, an owner's usage, otherwise lawful, can

be made to be unlawful. Where this is the result without any action on the part of

the land owner, it must mean great hardship for him. If for instance, the appellant

had continued operation as a rice mill, can he be penalised by the zoning decision

of the planning authority, say, for instance, by being made to close down the mill.

Fortunately, this question did not arise for our determination. The appellant had

converted the rice mill into a sewing factory. It is no more the question of the

continued use of an approved rice mill in land now zoned as residential. We bear

in mind the appellant's serious contention that no dyeing or bleaching operations

are being undertaken and that its activities are limited to cutting and sewing of

garments and that it causes no annoyance to anyone in the neighbourhood. So far

as the school is concerned, it is more environmentally friendly than the rice mill

could be. We also have noted that a petrol station has been allowed to be built

along the same side of the road as the factory and much nearer the school than the

factory is. It is the contention of MPSP that a commercial structure as the petrol

station is often quite a useful adjunct in a residential area. But even taking all these

matters into consideration and the submissions of learned council for the

appellant, we cannot ignore the fact that the construction of the sewing factory is

an illegality and that to allow the appeal as post-hoc justification would be to gloss

over, if not tacitly, an illegality.

But we also do not think that the appellant had set out deliberately to commit an

illegality. Like so many in the state, it thought that it could reasonably obtain the

planning permission. It did not as so many others still do not, realise that the

zoning laws could be strictly applied and that when so applied, it would be in the

wrong.

In these circumstances and in the further consideration of the employment of a

work force in excess of 250, as we are told, employed in the factory, we consider

this a suitable case for the exercise of our discretion to allow the appellant a period

of 5 years to remove the factory out of a residential area. The period of 5 years

will commence from the date of this decision.

This will give the appellant ample time to make the move without serious

dislocation to its operations. It will, perhaps, enable it to approach the local

planning authority for any suitable amendment to or change in the planning for the

locality. The provisions of the Act allow for any suitable changes to plans already

made and in a suitable case, the planning authority may perhaps consider the

human element in the use of the land.

Terbitan Kes


2

8


RAYUAN NO: LR/SP/6/92

PERMOHONAN KEBENARAN MERANCANG UNTUK BINAAN TANPA

KEBENARAN SEBUAH SETOR DIATAS LOT 661, MK. 11, SPT

Di Antara

TETUAN EN. KHOR CHOO MOK & EN. KHOR BAK HONG

dan


DECISION

This appeal has to be re-heard as the Board that first heard it on April 28, 1993 was

wrongly constituted and had therefore no jurisdiction to hear it.

The Appellant's application for planning permission was for a store on Lot 661,

mukim 11, S.P.S. The store was to be an open-sided shed or stall and was to be used

for the garaging of tractors and the storage of construction materials. What in fact

happened was, as in so many cases, that the shed been built and the Appellants were

merely seeking to legitimatise their construction and use.

The land use specified in the title was agricultural. Nevertherless, they had obtained

permission to build and did build three shop houses for residential purposes. They

then proceeded to use these shop-houses for a foundry and workshops. By reason of

this usage, their land assessment had been substantially increased. But they had at

no time obtained the relevant and necessary permission for a change of use.

The application was turned down on the one ground that the proposed use of the

land was against regulations pertaining to the proper use of agricultural titles. At the

first hearing, the Appellants were told that their appeal could not be entertained as it

would mean that the Appeal Board would be authorising them to use the land

otherwise that in accordance with the law.

RA

YU

AN

NO

: L

R/S

P/6

/92

FAKTA KES

Pengerusi : Y. Bhg. Tan Sri Dato' Chang Min Tat

Ahli-Ahli Panel : Y. Bhg. Dato' David Choong Ewe Leong


Perayu : Mr. Khor Rak Hong, in Person

Responden : Mr. Mohd Zahari Bin Senu, Pengarah Perancang Bandar,MPSP

Keputusan : Rayuan Di Luluskan

Tarikh Keputusan : 9 Ogos1993

3

Terbitan Kes


9

The appellants were attentive to what the Appeal Board had said. They

immediately set about securing a change of land use and succeeded to obtain

approval on Jun 6, 1993, subject to a substantail premium.

They were allowed to pay this premium by instalments and on the day of hearing,

were able to produce proof of payment of the two instalments required to be paid

to date.

This conversion of title caught En. Zahari entirely by surprise. It had removed the

one ground for refusing planning permission.

The Appellants also contended that on nearby Lot 660 stood a rattan workshop and

on Lot 662, there was a spray-painting and repair workshop for motor car bodies.

In these circumstances, we were unanimously of the opinion that the appeal should

be allowed.

I therefore made the order that the appeal succeeded and the Appellants would be

allowed to use the open-shed for the purposes stated on a temporary basis until

such time as the surrounding area is required to be consistently developed in

accordance with an approved local plan.

I also advised the Appellants that if they should want to make any alterations to

the open shed, they should first apply to the Majlis for planning permission.

Dated at Penang this 9th day of August, 1993

Terbitan Kes


4

10

DECISION

This case has. With my sincere apologies to every-one concerned, to be re-heard,

the Board that heard that heard it on April 28, 1993 having been found to have been

wrongly constituted.

On April 22, 1992, the Respondents notified the Appellants that their application

for planning permission to build a two-storeyed office and go down on their land,

lot 460 Mukim 14, Seberang Perai Utara, was rejected. The application was

rejected on the ground that in the structure plan, this area is to be used for

residential purposes.

In their notice of appeal the Appellants gave as their ground of appeal that the

erection of a go down in this area for storage purposes only had no detrimental

effects on the environment and and posed no threat to human lives. They made no

mention of the original intention to use, possibly, the top floor of the proposed

building for an office. But we would concede that the office would similarly have

no ill effects and pose no threat.

In processing the application, various departments have laid down conditions for

compliance by the applicants. We have had no word from the Apellants whether if

their appeal is allowed, they would have agreed to abide by those conditions. Of

course, if we have allowed the appeal, it would be subject to the Appellants

agreeing to do so. But there is always the possibility that some of those conditions

might not have been acceptable. It would have been so much more convenient if at

the appeal, the Appellants indicate if they are prepared to do so.

RA

YU

AN

NO

: L

R/S

P/1

1/9

2



PERMOHONAN KEBENARAN MERANCANG UNTUK CADANGAN SATU BLOK 2

TINGKAT PEJABAT DAN GUDANG DIATAS LOT 460, MK.14, SPU

Di Antara

TETUAN TAN BAN HUAT SDN. BHD

Dan


FAKTA KES Pengerusi : Y. Bhg. Tan Sri Dato' Chang Min Tat

Ahli-Ahli Panel : Dato’ David Choong Ewe Leong


Perayu : Mr. Yu Meng Queng, advocate & solicitor

Mr. Ong Jin Cheng, architect from

Mr. Tan Keat Hong, managing director, and

Mr. Tan Khek Peng, director, with him.

Responden : Mr. Mohd Zahari Bin Senu, Pengarah Perancang Bandar MPSP


Tarikh Keputusan : 28 April 1993

Terbitan Kes


5

11

For ourselves, we note a comment by the Pengarah Kejuruteraan Majlis that the

proposed go down is affected by a drainage Master Plan. We have had no

arguments whether this would be sufficient of itself to reject the the application

and this appeal must proceed strictly on the grounds advanced by both sides.

In the course of the argument and for our better understanding, both sides have

produced photographs of the area surrounding the lot under discussion, mounted in

such a way as to give us a vivid picture of the land and its use to date. We are

grateful for the pains taken.

En. Md Zahari for MPSP produced as an exhibit an application in1981 by the then

owners of lots 457, 458, 459, 460 and 461, all contiguous lots, for the

development of this area as a housing estate. The shapes and sizes of these lots

would require surrender, amalgamation, subdivision and re-alienation. That would

make sense out of these lots, which are irregular shaped, though roughly

rectangular in form, with relatively narrow frontages and long sides. It is difficult

to envisage how these lots could be used in a harmonious development, except in

the way the owners had thought of. But of course, we are not unaware that the lots

could be used for buildings such as godowns and factories.

En. Md. Zahari also advised that planning approval of this development had been

given and accordance therewith a building was commenced within the year on lot

462?. It was therefore suggested that planning permission already given has not

lapsed and therefor this area is still under housing development. In the view we

have taken of the appeal, we do not propose to decide the rather thorny question

whether commencing the construction, without however finishing it, was effective

to save the planning permission.

Unfortunately, the owners of these various lots did not carry out their purpose and

eventually, the owners of lot 460, sold their land to the appellants. For all we

know, the other owners might have done the same. This scheme is for all practical

purposes defunct.

The whole basis of the Appellants argument is that the area nearby has been used

for commercial purposes and there is no valid reason to exclude lot 460 from this

development. Another argument is that the Mak Mandin Industrial Estate is nearby

and the erection of a godown on lot 460 would aid the development and use of this

industrial estate.

As for this latter submission, with the greatest of respect, we disagree. We would

have thought that the nearness of the Mak Mandin Industrial Estate indicates that

the place to build the godown is in the industrial area and not outside it.

Terbitan Kes


6

12

We have ourselves conducted a rather anxious comparison of the photographs

submitted by both sides and have come to the following findings:

1. On the other side of the road, facing lot 460, is a development of a

housing estate, now known as Taman Bagan Lallang, with provisions for

a school and a Kawasan Lapang.

2. If Lot 460 and the nearby lots to the north and south of it had been

developed as originally planned, they would have been part of this

development.

3. Proceeding north of Lot 460, Lots 459 and 458 still lie vacant; on lot 457,

there has been built a house used as a residence; Lot 456 has been used

as shop lots.

4. Proceeding to the south of lot 460, lots 461 and 463 are still vacant. In

between these two lots is lot 462 on which there are a few abandoned

houses. Lot 1074 is also vacant but there is a house on lot 1409; lot 1410

is vacant land but houses have been built on lots 1077 and 1078. The

southern side of lot 1078 borders a road branching off Jalan Bagan

Lallang.

5. The various factories and godowns appearing in the pictures submitted

by the Appellants all lie outside this area. We have however no

information when these were built. If they were all erected before the

Draft Structure Plan was put up, their existence is irrelevant to the issue

before us.

It is therefore clear that the area immediately adjacent to the lot in question is

readily available for development as a housing area.

If town planning is to achieve its objective of a harmonious development, it has to

begin somewhere. Where, as here, the development originally applied for and

approved and, on the other side of the Jalan Bagan Lallang, fully carried out, it

would be a retrograde step to frustrate this development by allowing the appeal.

In all these circumstances, we are unanimously of the opinion that the appeal

should be dismissed and I so order.

Dated at Penang this 13 th day of August 1993.

Terbitan Kes


7

13

DECISION

The Appellant's application for planning permission to build an open shed on part

of Lot 5773 which he had leased from the owner, Setia Beras Sdn. Bhd., was

refused on February 2, 1993. The Appellant had intended to use the open shed for

the manufacture of bodies to trailers and allied construction. The shed had in fact

been built. He was now seeking to legalise his standing.

The reasons given for the rejection were that the place was zoned for residential

use and there had been objections from a nearby school and a Masjid. It was

admitted that the Masjid was perhaps too far away to be seriously listened to but

the school was quite near.

It was common ground that the owner of the land had built a rice-mill (a beras -

kilang) and was stilling using the building for the same purpose. There is also

nearby on Lots 5772, 823 and 825 a textile factory which is still functioning as

such. It was submitted that MPSP had asked the beras kilang to change the use of

the factory to a less noisome purpose, e.g. a storage go down or a workshop.

The Appellant submitted that his use of the shed would cause no obstruction and

there would be no noise other pollution.

In all the circumstances of the case, we are of the unanimous opinion that the

appeal should be allowed and the appellant be given planning permission on a

temporary basis, limited, in the first place, to 2 years from the date of the hearing.

Dated at Penang this 9 th day of August, 1993.



PERMOHONAN KEBENARAN MERANCANG UNTUK CADANGAN SEBUAH

BANGUNAN TERBUKA TANPA KEBENARAN DIATAS LOT 5773, MK.13, JALAN

ROZHAN, SPT

Di Antara

TETUAN QUIK TAK SAN, t/a TETUAN PERUSAHAAN KEJURUTERAAN SENG FATT

Dan


FAKTA KES


Ahli-Ahli Panel : Mr. Peter Oon Peh Tschin

Mr. Radin Muhamad Amin

Perayu : Mr. Quik Tak San, in person

Mr. Johnny Yu, with him.

Responden : Mr. Mohd Zahari Bin Senu,

Pengarah Perancang Bandar MPSP


Tarikh Keputusan : 9 Ogos 1993

RA

YU

AN

NO

: L

R/S

P/1

2/9

2

8

Terbitan Kes


14

DECISION

The Appellant, the registered proprietor of Lot 1732, Sek.1, Bandar Tanjong

Tokong, applied on March 4, 1991 for planning permission for the erection on the

said lot of a 5-storied block of 6 apartments and penthouse and was refused in

Borang C2 on July 16, 1992 and advised by letter dated July 24, 1992.

The reason given for the rejection is that the said Lot 1732 has been zoned for

residential development in the Draft Local Plan for Tanjong Tokong. In This Draft

Local Plan, it is provided that the development or the redevelopment of existing

housing units or plots in such a manner not compatible with the existing housing

type, design, character, height and density shall not be allowed. It is contened on

behalf of MPPP that for the Tanjong Tokong area, the said Lot 1732 lies within an

area designated as an “established housing area” and that the existing house in this

area are either single or double storied detached houses, with which the proposed 5

storied building will be not compatible.

The Appellant however points out that just westward of lot 1732, on nearby Lot

3171, which is, however, not strictly contiguous, a condominium of 28 stories has

been allowed to be built under the interim Zoning Plan

MDLB.PP.Bil.1/Sek.1/1974. This is the Leisure Bay Condominium. To the east,

some 200 or 300 feet away, on three adjoining lots, Lot 1819, 1820 and 1821, a 9

story apartment block of 48 units is under contruction.

MPPP's reply is brief. These 4 lots lie outside the established housing area. Lot

1732 lies within. The panel members and I have satisfied ourselves on this point by

an inspection of the plans.



PERMOHONAN KEBENARAN MERANCANG UNTUK MENDIRIKAN 1 BLOK

PANGSAPURI 5 TINGKAT (6 UNIT PANGSAPURI & 1 UNIT PENTHOUSE) DI ATAS

LOT 1732, SEK 1, BANDAR TANJONG TOKONG

Di Antara TETUAN LOW MOH SUN

Dan


FAKTA KES


Ahli-Ahli Panel : Y. Bhg. Dato’ Khalid Ahmad bin Sulaiman

Mr. Dr. Ong Hean Tee

Perayu : Mr. Maikal Yasu, Advocate & Solicitor

Mr. S. Karthigasu, with him.

Responden : Mr. Ram Relani, Director, Legal Affairs, MPPP


Tarikh Keputusan : 3 Julai 1993

RA

YU

AN

NO

: L

R/S

P/1

5/9

2

9

Terbitan Kes


15

Now, the Town and Country Planning Act, 1976, Act 172, was brought into force

on March 15, 1976 but only adopted by the Government of the State of Penang

on January 1, 1985 by PU(PG) 30 of 1984 dated November 8, 1984. Act 172

envisages, where it is brought into force, the drawing up of Draft Structure Plans

and Draft Local Plans for various areas. Two Draft Structure Plans have been

drawn up for Penang, one for the island of Penang and the other for Seberang

Perai. Draft Local Plans for various areas in the state have also been drawn up.

The Draft Structure Plan for Penang was duly approved by the State Planning

CommitteOctober 19, 1989 and is now known as the Municipal Council of

Penang Island Structure 1987. There is also a Draft Local Plan, prepared in

October, 1990, for the Tanjong Tokong area but at no time up to the hearing of this

appeal has it been approved and adopted.

The Appellant's learned Counsel therefore contends that it was wrong on the part

of the MPPP to reject his application by reference to a Local Plan that has not

been passed and has not the force of law. It follows in his contention that first,

MPPP should have acted under s. 21(6) of the Act and secondly, it should not have

acted under s. 22.

Where no development plan exists, the local planning authority is required by

s.21(6) to notify the owners of adjoining lots to lodge their objections, if any,

before dealing with the application for planning permission. Council submits that

this had not been done and that clearly the local planning authority has wrongly

rejected his client's application.

With respect, in s.2 of the Act, development plan is defined to mean;

a) the local plan for the area; or

b) if there is no local plan for the area, the structure plan for the area, There is

therefore a development plan for that part of the Island of Penang known as

Tanjong Tokong. It follows that s.21(6) is not applicable.

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S. 22, in its relevant parts, provides that

S.22 (1) As soon as possible after the receipt of an application for planning

permission .....the local planning authority shall decide on the

application for planning permission.

(2) In dealing with an application for planning permission, the local

planning authority shall take into consideration such matters as are

in its opinion expedient or necessary for proper planning and in

particular

(a) The provisions of the development plan, if any;

(b) The provisions that it thinks are likely to be made in any

development plan under preparation or to be prepared, or

the proposals relating to those provisions;

(3) The local planning authority shall not grant planning permission if

(a) The development in respect of which the permission is

applied for would contravene any provision of the

development plan.

With respect, I am of opinion that on a proper construction of this s. 22, the words

underlined by me are decisive of the issue raised by learned counsel for the

appellant. It was not improper for the local planning authority to consider and be

guided by the provisions of the draft local plan for Tanjong Tokong.

The appeal must be dismissed and the decision of MPPP stands. I am glad to state

that the two other members of the Appeal Board concur with this decision.

Dated at Penang this 3 th day of July 1993.

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DECISION

This was an appeal from the refusal of planning permission submitted by the

owners of Lots 226 and 253 for the construction of a block of 5-storeyed flats, 2

flats on each floor. The combined area of the two lots was 0.259 acres. The locality

is in Jalan Brother James and the site is adjacent to the St. Xavier's Primary School.

The reasons given for the rejection were that the said lots were within an

established area for mainly 2-storey detached houses. Spelled out, the objection was

that the proposed 5-storeyed block of flats was incompatible with the character,

density and height of the area. Moreover, it was next to a school.

The task of the Appeal Board in coming to a decision in this appeal was rendered

easier by the evidence called on behalf of the appellants and by the excellent

submission made by learned counsel for the appellant.

The appellant company contended that it bought the two lots in 1990 for $360,000

for the construction of a block of flats and, more pertinently, that before the

purchase, the appellant company had caused a search to be made by its architect. A

copy of the search was tendered as an exhibit. The area was found to have been

zoned for residential use. There was no restriction as to the height of the building.

Mr. Tan Liang Chye, the Managing Director, testified that if there had been any

such restriction, he buildings would not have bought the land. He also pointed out

the several multi-storeyed in the surrounding area.

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PERMOHONAN KEBENARAN MERANCANG UNTUK MENDIRIKAN 1 BLOK

PANGSAPURI 5 TINGKAT (10 UNIT ) DI ATAS LOT 226 & 253, SEK.1,

GEORGETOWN, DTL.

Di Antara TETUAN LEONG SENG CONSTRUCTION (PG) SDN.BHD.

Dan

MAJLIS PERBANDARAN PULAU PINANG

FAKTA KES


Ahli-Ahli Panel : Mr. Peter Oon Pei Tschin

Mr. Natha Singh

Perayu : Mr. Foo Say Keow, Counsel

Responden : Mr. Ram Relani (with him, Che Rosne binti Lazim)


Tarikh Keputusan : 3 Julai 1993

Terbitan Kes


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Mr. Loh Eng Hooi was not the architect who had made the search but he claimed

to have checked it with the Town Planning Department of MPPP and to be

speaking from personal knowledge. He also claimed that there is no local plan for

this area. The plan submitted had endeavored to meet every requirement of MPPP.

For instance, as against a requirement for a set-back of the building line of 25 feet,

it had provided 30 feet. The Appellant could demonstrate that all the requirements

of the other departments in MPPP had been fulfilled or agreed to. It was also able

to satisfy the Board by a set of figures that in terms of the equivalent floor space

(“EFS”), the plan was not in excess of the permissible maximum density of 30

units. Indeed, Mr. Belani, learned counsel for MPPP, admitted as much. But it was

his contention that in terms of units per acre, there was an excess. For his part, Mr.

Foo Say Keow, learned Counsel for the appellant, countered by adducing from the

relevant portions of the document described as Dasar-Dasar/ Garispanduan-

Garispanduan issued by the Jabatan Perancangan Bandar and Jabatan Bangunan of

MPPP provisions to the contrary.

For my part, it seems to me, with respect, that unless there are provisions making

it mandatory to relate the provision for EFS to the provision of units per acre, it

will ordinarily be sufficient compliance with the guide-lines if the applicant

satisfies one or the other basis for calculation.

The objection on the ground of density having been disposed of, it remains to

consider MPPP's objections on the grounds of height and character. As has been

noted, there is no height control in this area and no such restriction has been

imposed on other building plans. So far as the school is concerned, the difference

between their respective heights was an estimated 22 feet. The appellant was able

to point out to several multi-storeyed buildings in the immediate neighborhood.

So far as the character of the nearby buildings is concerned, we are frankly unable

to see any disharmony. We are keenly aware that between the proposed flats and

the 9-storeyed building that had been put up at the junction of Jalan Burmah and

Jalan Brown there are several houses, about four in number, all single – storied.

They front Jalan Brown and are effectively sand-wiched between these two

buildings. We bear in mind that several of the owners of these houses have

objected.

13

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19

But if planning fails to take note of the future, it inevitably becomes restrictive and

may well hider development. For that reason, there are provisions in the Town and

Country Planning Act which enable the local authorities to amend any of their

local plans to cater for development. Nobody can fail to notice that the area known

as Pulau Tikus is presently the scene of hectic development which calls for

intensive building of multi-storied structures both for residential and commercial

purposes. The present development, in my view and with respect, can only be

regarded as being in accord with planning for future houses fronting Jalan Brown

and others will see that the time is rapidly approaching when they themselves may

well participate in such development. And be glad to do so.

Our considered view is that the appellant company has fulfilled all the conditions

for its planned structure and come within the proper exercise of any discretion in

the local authorities for approval.

A last-ditch attempt was made to salvage the appeal. It was contended that the

block of flats next to a school would result in intolerable road congestion. That

was not, however, one of the grounds for refusing planning permission.

Nevertheless we considered it. But so far as we can see for ourselves, there might

be some degree of congestion for, say, half an hour before morning assembly and

for another half hour at dispersal. We did not however think that there was any

congestion of sufficient materiality to refuse planning permission on this score.

Our unanimous opinion was that the appeal should be allowed. I accordingly made

an order to that effect.

Dated at Penang this 29 th day of December, 1993

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DECISION

On June 3, 1993, we allowed the appeal and now give the grounds for our decision.

Planning permission was given in 1988 for the development of a housing estate on

P.T No. 3219, Mk. 15, SPS, known as Taman Tangling, subject to the condition,

among others, that a site was to be set aside for sewage treatment and “surrendered”

to MPSP for the nominal consideration of $ 1. The type known as the RBC system

was then in favour with MPSP and it was considered that an area of some 49,280.8

sq. ft. would be required for this purpose.

This site was subdivided from the whole piece of land and as a consequence, zoned

for sanitary purposes. The appellant now holds a temporary title thereto.

Subsequently, the appellant was advised that another type of sewege disposal

known as the Biodrum System had been approved by MPSP. This system requires a

smaller area. The appellant therefore applied to MPSP to use this type and its

application was approved. It then proceeded to instal this system on a part of this

reserved site. It required an area of only 12,800 sq. ft., leaving an area of some

36,480 sq. ft. free from any requirement for sanitary purpose.



PERMOHONAN PEMBATALAN SYARAT SEBAHAGIAN TAPAK TANGKI NAJIS

DIATAS LOT PT 3219, MK.15, SPS

Di Antara

TETUAN LEAN TAT DEVELOPMENT SDN. BHD

Dan


FAKTA KES


Ahli-Ahli Panel : Tuan Haji Ghazi bin Ishak

Dr. Ong Hean Tee

Perayu : Mr. Chooi Ewe Seng

Mr. Soon See Hean, Directors of Appellant Company

Mr. Thaw Yeng Cheong, from Architect Permata, in Attendance

Responden : Mr.Zahari bin Senu, Pengarah Perancang Bandar,MPSP


Tarikh Keputusan : 3 Jun 1993

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Quite understandably, the appellant sought to use this not inconsiderable area for

the building of houses. It therefore applied to do so. It did so by applying to set

aside the condition originally laid down that this area was to be wholly set aside

for sewage treatment and surrendered. What it sought to do was to seek an

amendment to the condition to mean and include only the area actually occupied

by this Biodrum sewage system.

It obtained an admission from the MPSP that the Engineering Department had

raised no objection. This was confirmed by En. Zahari bin Senu for MPSP.

MPSP however turned down the application on the ground that an agreement had

been reached to surrender the site and should be first carried into effect. Then the

appellant could re-apply for the return of the land. We trust that any suggestion

such as that this means that MPSP intends to sell that part of the site not required at

the best price obtainable, to the appellant only if it was the highest bidder, would

be an injustice to MPSP.

It has been explained by the appellant that according to its regulations, MPSP

requires the developer to surrender the reserved site only after completion of the

whole scheme, i.e. only after the occupation certificate has been obtained for the

last house to be built. In the meantime, it has to maintain the site. It has so far

completes 358 units of the 405 units of various types of houses planned and

approved. It intends to commence the next and last phase for the remaining 47

houses soon. In these circumstances, MPSP's regulations would mean that the

appellant would not be able to consider any development of this now unwanted

land until after the last phase has been completed, the surrender effected and all the

negotiations involved in its application for the return of the land from MPSP have

been resolved in its favour. It contends therefore that this is too involved a process

and takes up too much time so as adversely to effect its present scheme. It is also

unnecessary and contrary to even MPSP's practice. It gives two other instances,

viz., Taman Jambu developed by Permai Baru Sdn. Bhd. In Macang Bubuk and

Taman Chegar developed by Jayamas Sdn. Bhd. at a site situated exactly opposite

the appellant's housing scheme, in which the developers were not required to

surrender and re-apply; all they had to do was to surrender the portion strictly

required for the sewage system.

En. Zahari bin Senu for MPSP made a brave attempt to save the day by pointing

out that under normal conditions, MPSP would require the developer to reserve at

least 10 % of the land area for open space and that the developer in this case

would not be able to do so, taking into account the area of the actual sewage

treatment site and the area set aside as a padang. In our view, the difference is not

such as to have any material significance.

Terbitan Kes


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Our considered view is that town planning matters should be considered

objectively, for the proper control and regulation of town and country planning as

stated in the preamble to the Act. Matters such as financial advantage have

therefore not part to play. By accepting even this smaller area, MPSP get in full

what it required for the building scheme, a sufficient area of land for sewage

treatment plant to serve the houses on the estate.

We therefore held that the application to amend the original condition should have

been allowed so that all the appellant has to do is to surrender the area actually

occupied by the Biodrum Sewage System to MPSP for the same consideration of

$1. The appellant should be aware that there will have to be an application for

subdivision of the land held under the temporary title. It should also realise that it

would have to apply for re-zoning of that area not now required for sewage

purposes but that, so far as this appeal Board is concerned, will be a matter, if at

all, to be considered at a future date.

Dated at Penang this 3 th day of June 1993.

17

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23

DECISION

The appellants application for approval of a godown on lot 2834, Daerah Seberang

Perai Tengah, Mukim 15, was rejected by the Planning Department of MPSP.

Against that rejection they now appeal to this Board.

It turns out that the go-down has in fact been built and factually what the

appellants are asking for is approval of the construction.

It was ascertained that the construction of this godown was in an area zoned for

residential use and that this zoning plan had been prepared and incorporated in the

Draft Structure Plan of 1985 and gazetted in July 1993. The appellants were said

to have been told that their application could not be approved in view of this

contravention of the zoning policy. The officer who dealt with this application then

took a procedure which I had not encountered before. She took the view that it was

entirely pointless in processing this application. She accordingly informed the

appellants and returned the application to the appellants together with the fee

which I am informed is in excess of RM 2,000 since it was for a commercial

building. She did not forward the application for the views and objections, if any,

of the technical departments.

By so doing, she has very obviously saved very considerable Government time

and money.

For myself, I have always wondered why an applications is processed, as a matter

of automatic procedure, when it was obvious, as in this case, that even though the

technical departments have no objections to the construction, the application

would eventually be refused because it was wrongly made in the first place.

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CADANGAN 2 BUAH RUMAH KEDAI DAN SETOR DI ATAS TANAH LOT 2834, MK.

12, SPT

Di Antara

TETUAN HEAP HO HENG SDN. BHD.

Dan


FAKTA KES


Ahli-Ahli Panel : Dato’ David Chong Ewe Leong

Dr. Ong Hean Tee

Perayu : Mr. Ang Ah Ba , Managing Director of Appellant Co.

Mr. Thaw Yeng Cheong


Keputusan : Rayuan Di Tarikbalik

Tarikh Keputusan : 5 Februari 1994

18

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24

It seems to me that such a unthinking procedure is an exercise in futility (if not,

fatuity). So much time and expense would have been saved. The department

would have been freed to attend to matters which need attention. The developer

would not have to wait, sometimes years, for an answer that was inevitable right

from the beginning. He would then be able to reconsider his development plans.

I am of the opinion that this particular officer deserves commendation for the

attention she paid to her duties.

In the instant case, the appellants have an additional cause to be thankful. He has

had returned to him the application fee which is not an inconsiderable sum.

But with the greatest of respect to this particular officer, the authority to decide on

any application is, by s. 22 of the Town & Country Planning Act, 1976, given to

the local planning authority. She obviously has no authority to pass the

application. Equally she has no authority whatsoever to reject it.

She did well in advising the appellants in the way she did but if after her advice,

the appellants insist on having the application considered on its merits, she should,

after due advice to the appellants, have accepted the application and dealt with it.

In view of conflict with the zoning, she needed not to ascertain the view of the

technical departments and she should have forwarded the application to the local

planning authority with a recommendation for the rejection of the application for

stated reasons.

En. Zahari has assured us that the officer meant well. We unhesitatingly accept

this assurance

We explained, at some length, to the appellants that if they insisted on their

application being considered by the local planning authorities, the order of the

Board on their appeal must be that the matter be submitted for decision. He would

have to pay the fee of some RM 2,000. But the decision on this case would be the

same. It cannot be otherwise.

The appellants then asked for time. We advised him that this is a matter for him to

apply to the Local Planning Authorities. And, later, we were told that the

appellants had been advised to do just that.

In the end, the appellants agreed to abandon their appeal. I therefore made no

order.

Dated at Penang this 5 th day of February 1994.

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DECISION

The appellant, Tetuan Goldstream Sdn. Bhd., is the owner of Lot 680 Mukim 1, Kg.

Kepala Gajah, Simpang Ampat, Seberang perai Selatan. The lot is a palm-oil

plantation. It is land-locked and hitherto had no access to the nearest road.

The third party, Tetuan Homer Fancy Plywood (M) Sdn. Bhd., is the owner of Lots

684 and 685. Lot 684 fronts a road, Jalan Tasek. Lot 685 to the north just into Lot

680 so that on three sides, it abuts on Lot 608. Tetuan Homer sought to develop its

two lots and applied for planning permission for the erection of a plywood factory.

Among the conditions imposed was one which required it to construct a 16-foot

wide road along the western boundary of its two lots. This road does not serve it so

much as it serves Tetuan Goldsmith which from the construction acquires an access

road to its lot 680. The defendant very clearly made use of the application to provide

a road to an otherwise completely land-locked lot under the provisions of s. 390

National Land Code.

One would have expected the owner of Lot 680 to be grateful. But instead it

appealed to us. Its contention was that the road should be at least 20 feet wide. Its

representative based his contention on a suggested provision for this width. He

produced pictures that other approach roads in the surrounding area were all 20-foot

wide roads. When asked, he could not direct our attention to any such regulation. On

the other hand, En. Zahari bin Senu advised us that there is a provision for a 20-foot

wide road but only for industrial development of the terrace-type of factories.

The members on the panel unanimously agree that the appeal should be dismissed.

Dated at Penang this 27 th day of April 1994.

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PELAN SUSUNATUR UNTUK CADANGAN KILANG DI ATAS LOT 684 & 685, MK.1,

KAMPONG KEPALA GAJAH, SIMPANG AMPAT, SPS

Di Antara

TETUAN GOLDSTREAM SDN. BHD.

Dan


Dan

TETUAN HOMER FANCY PLYWOOD (M) SDN.BHD.

FAKTA KES


Ahli-Ahli Panel : Y.Bhg. Dato; Khalid bin Ahmad

Dr. Ong Hean Tee

Perayu : Mr. Goh Looi Sai, General Manager


Pihak Ketiga : Mr. Hong Jung Tsung, Managing Director


Tarikh Keputusan : 27 April 1994

Terbitan Kes


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Sidang pengarang

Penasihat

Tuan Haji Zainuddin bin Ahamad

Penyelia

Pn. Raimah binti Kassim

Ahli Jawatankuasa

Cik Fakhriyah binti Hanafi

Pn. Rakiah binti Laidin

En. Mohd Ghazali bin Mat Rasit

En. Ismit bin Yusof

En. Mohd Fadzli bin Ahmad

En. Norrazi bin Ismail

Cik Haslina binti Hashim

27

Sebarang pertanyaan sila hubungi:

Jabatan Perancang Bandar dan Desa Negeri Pulau Pinang

Tingkat 57, KOMTAR, 10000 PULAU PINANG.

04-6505270

sambungan kepada

Cik Fakhriyah bt. Hanafi

En. Zulkifli b. Omar

En. Ismit b. Yusof

En. Norrazi b. Ismail

Cik Haslina bt. Hashim

atau layari

emel: [email protected]

http://jpbd.penang.gov.my

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