PUTRAJAYA (Nov 30): A three-member Federal Court bench had on Tuesday granted leave to residents of Sungai Ara, Penang to challenge the Court of Appeal's decision last May that allowed Sunway City (Penang) Sdn Bhd to build a condominium on a hilly area there.
Federal Court judge Datuk P Nalini, who led the three-member bench, gave permission to the Sungai Ara residents to mount a fresh appeal against the development by allowing 12 questions of law to be posed before the apex court.
The other two Federal Court judges were Justices Datuk Zabariah Mohd Yusof and Datuk Rhodzhariah Bujang.
The counsel for the residents, Datuk Dr Gurdial Singh Nijar, confirmed the decision with theedgemarkets.com.
Appearing with Gurdial were Meenakshi Raman, Jessica Binwani and Abraham Au, while senior counsel Datuk Dr Cyrus Das appeared for Sunway City and Karin Lim for the Penang Island City Council (MBPP).
Among the 12 questions of law posed before the apex court are:
- Whether a court is correct in law in giving primacy to the directions and/or guidelines issued by a state planning committee or its director over and above the provisions in a statutory development plan, and
- Whether a court in a judicial review application, where a decision of a public authority is challenged, may rely on an event that occurs subsequent to the time of such decision (broadly, excision of land as “hill land”) to retrospectively justify the validity of the said decision.
Last May 7, the Court of Appeal dismissed the residents' challenge and upheld the High Court decision allowing the developer to build the properties on the slope.
The bench led by Justice Datuk Yaacob Md Sam ruled there were no merits in the residents appeal to warrant the appellate court's intervention.
“We affirm the decision by High Court Judge Datuk Lim Chong Fong of his findings,” said Justice Yaacob, who sat with Justices Datuk Azizah Nawawi and Datuk Ahmad Nasfy Yasin.
The residents were appealing against the Penang High Court order to quash the decision of the Penang Appeal Board (PAB) which had set aside the planning permission granted to Sunway City for the proposed development of Sunway Hills.
The MBPP had granted Sunway City planning permission on the 80.89-acre lot of land in February 2012.
The land, situated 76 metres above sea level with approximately 43% of the area having a gradient exceeding 25 degrees, is a First Grade title land with no restriction of land use.
The residents of Sungai Ara consequently appealed through the PAB and the planning permission was set aside in January 2016.
After being aggrieved and adversely affected by the decision, the property developer filed for judicial review at the Penang High Court. In May 2017, the High Court ordered the decision of the PAB to be quashed.