Fishermen and environmental organisations file action against the Penang South Reclamation (PSR) Project

Press Release 14th February 2024

Seven fishers led by Zakaria Ismail together with Sahabat Alam Malaysia (SAM) and Jaringan Ekologi dan Iklim (JEDI) have filed an application for Judicial Review at the Penang High Court on 29 December 2023 to challenge the planning permission given by the Penang State Director of Town and Country Planning on 21 August 2023 for the Penang South Reclamation Project (PSR).

The nine applicants are suing the Penang State Director of Town and Country Planning (PLANMalaysia) (1^st Respondent), Penang State Planning Committee (2^nd Respondent), Penang State Government (3^rd Respondent) and SRS Consortium Sdn Bhd (4^th Respondent). The first applicant, Zakaria Ismail is bringing the action for and on behalf of himself and the fisher folks living and/or conducting fishing activities off the coast of Penang Island adversely affected by the PSR project.

On 5 February 2024, the Penang High Court granted leave to the applicants to proceed with the Judicial Review (JR) application.

In the application for judicial review, among others, the applicants have requested the following:

(a)        a declaration that the grant of Planning Permission by PLANMalaysia on 21 August 2023 is void and of no effect as it violates the provisions of the Town and Country Planning Act 1976.

(b)        an order of certiorari to quash the decision granting the Planning Permission to the Penang State Government to commence reclamation works for the PSR project in the Southwest District of Penang.

(c)        an order that the Penang State Government and SRS immediately restore all and/or any damage to the area in which reclamation works have commenced and/or completed for Island A and/or the PSR project, to its original and pristine state as it was prior to the start of the said reclamation works.

(d)        an order that the respondents pay damages to the Applicants and all fishers represented by the applicants in relation to the loss of their income, which is to be assessed by the court.

Aside from the above, the applicants are also seeking an order that the Planning Permission granted for the PSR project, and all other processes and reclamation works are stayed pending the final disposal of this judicial review application and costs. The project impacts are already being seen and felt by the fishers in this case.

The stay application will be heard once the court fixes a date during the forthcoming case management fixed on 19 February 2024.

The following is a summary of the grounds for the Judicial Review[1] application:

(a)        the Respondents failed to comply with a number of provisions in the Town and Country Planning Act 1976 (TCPA 1976) including,

(i)         obtaining the advice of the National Physical Planning Council (NPPC) prior to the approval of the Draft Structure Plan 2030 (DSP 2030) by the Penang State Planning Committee (Penang SPC); and

(ii)        seeking the advice of the NPPC when the application for Planning Permission was submitted by the Penang State Government.

(b)        the Respondents committed a serious error of law when the PSR Masterplan was referred to the NPPC for advice and directions under the TCPA 1976 when the DSP 2030 had not yet come into effect, and the Structure Plan in force then was the Structure Plan 2020. The Structure Plan 2020 did not provide for the PSR Project in the area concerned.

(c)        the Respondents failed to undertake the process for the alteration and/or amendment of the 2030 Penang Structure Plan to reflect the scaling down of the PSR Project from three islands to one island and this deprived the applicants from having an opportunity to provide feedback and objections as provided for under the TCPA 1976.

(d)        there was no completed Environmental Impact Assessment Report (EIA Report) for the PSR Project at the time the Planning Permission was granted by PLANMalaysia Penang because the EIA process under the Environmental Quality Act 1974 (EQA 1974) includes the right of statutory appeal. This had not yet been exhausted due to delay and inaction by the Appeal Board established under the EQA 1974[2].

(e)        the many adverse environmental and social impacts of the project, and irretrievable destruction to the livelihood of the fishers in the area was not taken into account adequately, or at all, by the Director General of the Department of Environment in approving the EIA Report and/or PLANMalaysia Penang in granting Planning Permission.

Mageswari Sangaralingam

Hon. Secretary

Sahabat Alam Malaysia

Khoo Salma Nasution

President

Jaringan Ekologi Dan Iklim (JEDI)

Haji Zakaria bin Ismail

Head of Unit Nelayan Sg Batu

Ibrahim bin Che Rose

Unit Nelayan Teluk Tempoyak

Azhar bin Najamudin

Unit Nelayan Sg Batu

Mohd Ismail bin Ahmad

Unit Nelayan Sg Batu

Mohd Shahril bin Rosli

Unit Nelayan Sg Batu

Omar bin Hassan

Unit Nelayan Sg Batu

Ramdzan bin Ishak

Unit Nelayan Sg Batu

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[1] Please see the full grounds in the attached court document.

[2] The fishers had filed an Appeal at the Appeal Board in May 2023 to challenge the decision of the Director General of the Department of Environment for approving the EIA Report in April 2023. To date the Appeal Board has yet to set a date for the hearing of the appeal.

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