Perbadanan Pengurusan Sunrise Garden Kondominium v Sunway City (Penang) Sdn Bhd (P-01(A)-222-07/2017)

SUNWAY CITY (PENANG) SDN BHD (No. Syarikat: 141336 - U)

LEMBAGA RAYUAN NEGERI PULAU PINANG [Dalam Perkara Permohonan Bagi Semakan Kehakiman No: PA-25-13-04/2016 Dalam Mahkamah Tinggi Malaya di Pulau Pinang Dalam perkara mengenai keputusan Lembaga Rayuan Negeri Pulau Pinang yang dibuat dalam Rayuan No. LR/PP/11/2012 yang diberitahu pada 27-1-2016 Dan Dalam perkara mengenai permohonan untuk kebenaran merancang No. MPPP/OSC/PM(1257)/11(LB) Sunway City (Penang) Sdn Bhd atas tanah yang dikenali sebagai Lot 14345, MK 12, Daerah Barat Daya, Pulau Pinang Dan Dalam perkara mengenai Akta Perancangan Bandar dan Desa 1976 Dan Dalam perkara mengenai perenggan 1 dalam Jadual kepada Akta Mahkamah Kehakiman 1964 Dan Dalam perkara mengenai Aturan 53 Kaedah Kaedah Mahkamah 2012 Sunway City (Penang) Sdn Bhd (No. Syarikat: 141336 - U) ... Pemohon

Lembaga Rayuan Negeri Pulau Pinang

Majlis Bandaraya Pulau Pinang

Perbadanan Pengurusan Sunrise Garden Kondominium ... Responden-Responden] DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. P-01(A)-223-07/2017 ONG AH BAA @ ONG CHOW SIN

SUNWAY CITY (PENANG) SDN BHD (No. Syarikat : 141336 - U)

LEMBAGA RAYUAN NEGERI PULAU PINANG [Dalam Perkara Permohonan Bagi Semakan Kehakiman No: PA-25-12-04/2016 Dalam Mahkamah Tinggi Malaya di Pulau Pinang Dalam perkara mengenai keputusan Lembaga Rayuan Negeri Pulau Pinang yang dibuat dalam Rayuan No. LR/PP/10/2012 yang diberitahu pada 27-1-2016 Dan Dalam perkara mengenai permohonan untuk kebenaran merancang No. MPPP/OSC/PM(1257)/11(LB) Sunway City (Penang) Sdn Bhd atas tanah yang dikenali sebagai Lot 14345, MK 12, Daerah Barat Daya, Pulau Pinang Dan Dalam perkara mengenai Akta Perancangan Bandar dan Desa 1976 Dan Dalam perkara mengenai perenggan 1 dalam Jadual kepada Akta Mahkamah Kehakiman 1964 Dan Dalam perkara mengenai Aturan 53 Kaedah Kaedah Mahkamah 2012 Sunway City (Penang) Sdn Bhd (No. Syarikat: 141336 - U) ... Pemohon

Lembaga Rayuan Negeri Pulau Pinang

Majlis Bandaraya Pulau Pinang

Ong Ah Baa @ Ong Chow Sin ... Responden-Responden] RAYUAN SIVIL NO. P-01(A)-224-07/2017

SUNWAY CITY (PENANG) SDN BHD (No. Syarikat: 141336 - U)

LEMBAGA RAYUAN NEGERI PULAU PINANG [Dalam Perkara Permohonan Bagi Semakan Kehakiman No: PA-25-10-04/2016 Dalam Mahkamah Tinggi Malaya di Pulau Pinang Dalam perkara mengenai keputusan Lembaga Rayuan Negeri Pulau Pinang yang dibuat dalam Rayuan No. LR/PP/12/2012 yang diberitahu pada 27-1-2016 Dan Dalam perkara mengenai permohonan untuk kebenaran merancang No. MPPP/OSC/PM(1257)/11(LB) Sunway City (Penang) Sdn Bhd atas tanah yang dikenali sebagai Lot 14345, MK 12, Daerah Barat Daya, Pulau Pinang Dan Dalam perkara mengenai Akta Perancangan Bandar dan Desa 1976 Dan Dalam perkara mengenai perenggan 1 dalam Jadual kepada Akta Mahkamah Kehakiman 1964 Dan Dalam perkara mengenai Aturan 53 Kaedah Kaedah Mahkamah 2012 Sunway City (Penang) Sdn Bhd (No. Syarikat: 141336 - U) ... Pemohon

Lembaga Rayuan Negeri Pulau Pinang

Majlis Bandaraya Pulau Pinang

Goh Lian Siah ... Responden-Responden RAYUAN SIVIL NO. P-01(A)-225-07/2017

SUNWAY CITY (PENANG) SDN BHD (No. Syarikat: 141336-U)

LEMBAGA RAYUAN NEGERI PULAU PINANG ... RESPONDEN-RESPONDEN [Dalam Perkara Permohonan Bagi Semakan Kehakiman No: PA-25-9-04/2016 Dalam Mahkamah Tinggi Malaya di Pulau Pinang Dalam perkara mengenai keputusan Lembaga Rayuan Negeri Pulau Pinang yang dibuat dalam Rayuan No. LR/PP/13/2012 yang diberitahu pada 27-1-2016 Dan Dalam perkara mengenai permohonan untuk kebenaran merancang No. MPPP/OSC/PM(1257)/11(LB) Sunway City (Penang) Sdn Bhd atas tanah yang dikenali sebagai Lot 14345, MK 12, Daerah Barat Daya, Pulau Pinang Dan Dalam perkara mengenai Akta Perancangan Bandar dan Desa 1976 Dan Dalam perkara mengenai perenggan 1 dalam Jadual kepada Akta Mahkamah Kehakiman 1964 Dan Dalam perkara mengenai Aturan 53 Kaedah Kaedah Mahkamah 2012 Sunway City (Penang) Sdn Bhd (No. Syarikat: 141336 - U) ... Pemohon

Lembaga Rayuan Negeri Pulau Pinang

Majlis Bandaraya Pulau Pinang

Chuah Kok Seng ... Responden-Responden] RAYUAN SIVIL NO. P-01(A)-226-07/2017

SUNWAY CITY (PENANG) SDN BHD (No. Syarikat: 141336-U)

LEMBAGA RAYUAN NEGERI PULAU PINANG ... RESPONDEN-RESPONDEN [Dalam Perkara Permohonan Bagi Semakan Kehakiman No: PA-25-8-04/2016 Dalam Mahkamah Tinggi Malaya di Pulau Pinang Dalam perkara mengenai keputusan Lembaga Rayuan Negeri Pulau Pinang yang dibuat dalam Rayuan No. LR/PP/15/2012 yang diberitahu pada 27-1-2016 Dan Dalam perkara mengenai permohonan untuk kebenaran merancang No. MPPP/OSC/PM(1257)/11(LB) Sunway City (Penang) Sdn Bhd atas tanah yang dikenali sebagai Lot 14345, MK 12, Daerah Barat Daya, Pulau Pinang Dan Dalam perkara mengenai Akta Perancangan Bandar dan Desa 1976 Dan Dalam perkara mengenai perenggan 1 dalam Jadual kepada Akta Mahkamah Kehakiman 1964 Dan Dalam perkara mengenai Aturan 53 Kaedah Kaedah Mahkamah 2012 Sunway City (Penang) Sdn Bhd (No. Syarikat: 141336 - U) ... Pemohon

Lembaga Rayuan Negeri Pulau Pinang

Majlis Bandaraya Pulau Pinang

Sim Khoo Tneah Seng & Goon Swee Keng ... Responden-Responden] CORAM: YAACOB BIN HAJI MD SAM, JCA ABDUL KARIM BIN ABDUL JALIL, JCA LAU BEE LAN, JCA GROUNDS OF JUDGMENT INTRODUCTION [1] There are five (5) appeals by the appellants before us against the decision of the High Court allowing the First Respondent's application for judicial review. It was agreed by parties in all appeals that the decision of this Court in respect of Civil Appeal No. P-01(A)-226-07/2017 (Semakan Kehakiman No. PA-25-8-14/2016) will bind the other for (4) appeals. [2] For the purpose of this judgment, the parties will be referred to as they were in the proceedings before the High Court. [3] Having heard the submission of the parties, we have deferred our decision to a date to be fixed. We now give our decision. THE MATERIAL FACTS Parties [4] The appellants/respondents are individual(s) and resident(s) in the vicinity of the Applicant's proposed Development on Lot 14345 Mukim 12, Daerah Barat Daya, Pulau Pinang ("Development"). [5] The First Respondent/applicant (Sunway City Sdn Bhd) is a private limited company involved in the business of property development. [6] The Second and Third Respondents are the local planning authority and the State of Penang Appeal Board constituted under sections 5 and 36 of the Town and Country Planning Act 1976 ("TPCA") respectively. Application for Planning Permission [7] The applicant is the registered owner of a piece of land known as Lot 14345, Mukim 12, Daerah Barah Daya, Pulau Pinang held under Geran No. 81977 (the Land), measuring a total area of 80.89 acres (327,361.83 square metres). The Land is located within the Sungai Ara/Bayan Lepas area. The Land is a First Grade title land with no restriction of land use. The Land is however situated at elevation of more than 76 metres above sea level and approximately 43% of the area has a gradient exceeding 25 degrees. [8] The applicant is desirous of undertaking the Development on the Land and had accordingly on 23.3.2011 submitted an application to the Second Respondent (Majlis Bandaraya Pulau Pinang/MBPP) for planning permission to develop the Land into a gated and guarded housing scheme comprising the following: Proposed DevelopmentNo. of UnitsA3 storey bungalows(1 storey rooftop recreation area)(strata title)62B3 storey zero lot bungalows(strata title)30C7 storey condominium(1 storey rooftop recreation area)&2 storey car park and recreation area36D2 blocks(Block A&B)of8 storey condominiums and5 storey car park and recreation area96E2 blocks(Block C)of5 storey condominiums and4 storey car park and recreation area20F2 blocks(Block D&K)of6 storey condominiums and4 storey car park and recreation area54 G2 blocks (Block F & G) of 8 storey condominiums and 4 storey car park and recreation area64H2 blocks (Block H & J) of 7 storey condominium and 4 storey car park and recreation area70I2 blocks (Block L & N) of 13 storey condominiums and 2 storey car park and recreation area104J1 block (Block M) of 16 storey condominiums and 2 storey car park and recreation area64K1 unit 3 storey clubhouse and 2 storey car park & 1 unit of 2 storey clubhouse and 1 storey car park-Total number of dwelling units600 [9] The application for planning permission was given a reference number, MPPP/OCS/PM(1257)11(LB) ("Kebenaran Merancang/KM Application") by the Second Respondent. [10] Based and in accordance with standard procedures, the KM Application was forwarded to various internal departments of the Second Respondent and also to external departments including the Town and Country Planning Department (TCPD/JPBD) for their respective input and comments. Approval by Town and Country Planning Department (JPBD) [11] On 19.4.2011, the JPBD replied and confirmed that they have no objection to the Development as proposed subject to the conditions as laid out in the letter, amongst other things, as follows (Exhibit "AG-5": "Didapati tapak cadangan terlibat sebagai 'Projek Istimewa' dan merujuk kepada 'Garispanduan Projek Istimewa Yang Dikenalpasti Di Dalam Rancangan Struktur Negeri Pulau Pinang 2020' Bil [K21- 4/2009] telah dibentangkan di Mesyuarat Jawatankuasa Perancang Negeri (JPN) Bil.4/2009 pada 21 Mei 2009 dan disahkan pada 18 Jun 2009. Jawatankuasa secara dasarnya bersetuju untuk meluluskan dan mengesahkan kertas kerja tersebut dan menetapkan bahawa terdapat dua (2) kategori projek istimewa yang dinyatakan dalam Rancangan Struktur Negeri Pulau Pinang 2020 (RSNPP 2020) di bawah perkara Dasar Khusus 3 Langkah 4 (DK3 L4). Cadangan pembangunan bagi permohonan ini terlibat di bawah kategori 2 iaitu:- Kategori 2 a) Pembangunan perumahan terdahulu di mana permohonan tukar syarat tapak kawasan berkenaan telah diluluskan di bawah perundangan Negeri bagi tujuan perumahan dan kelulusan tersebut telah disahkan sebelum kelulusan dan penerimapakaian RSNPP 2020. b) Antaranya termasuk projek pembangunan yang pernah mendapat kelulusan kebenaran merancang atau; c) Tapak yang ditunjukkan sebagai perumahan mengikut Pelan Dasar Perancangan dan Kawalan Pemajuan MPPP (sehingga RT diwartakan)". [12] Via letter dated 3.6.2011 to the applicant's consultant, the JPBD confirmed of the same (Exhibit "AG-6"). Pelan Dasar Perancangan dan Kawalan Pemajuan MPPP/PN-020 (PL/PP) [13] Pursuant to the "Pelan Dasar Perancangan dan Kawalan Pemajuan MPPP/PN/-020 (PL/PP)" approved by the Penang State Planning Committee (SPC) on 16.7.1996 (Pelan Dasar), part of the Land is zoned under "Perumahan Am" whilst another part is zoned under "Perumahan Ketumpatan Rendah". [14] Based on the zoning of the Land under Pelan Dasar, the permitted density and the maximum density in respect of the Land is as follows: Zoning Under the Pelan DasarPermitted DensityMaximum Permitted Density“Perumahan Am”15 units/acre30 units/acre (subject to payment of development charges)“Perumahan Ketumpatan Rendah”6 units/acre6 units/acre Approval of Jawatankuasa Pengurusan dan Pembangunan Tanah Berisiko [15] Since the proposed Development is on the Land located higher than 76 metres above sea level and with a gradient exceeding 25 degrees, the applicant also submitted a Geotechnical Report for the Development to Jawatan Kuasa Pengurusan dan Pembangunan Tanah Berisiko of the Public Works Department (JKR) for consideration. The JKR via letter dated 31.1.2012 confirmed to the applicant that the Mesyuarat Jawatan Kuasa Pembangunan Tanah Berisiko bil No. 4/11 had on 29.9.2011 approved the applicant's Geotechnical Report for Development subject to conditions as laid down therein. Approval by the Department of Environmental (DOE) [16] The applicant also submitted an Environmental Impact Assessment Report for Development to the Department of Environment (DOE) for consideration. The DOE via letter dated 16.8.2011 to the applicant confirmed that the applicant's Environmental Impact Assessment Report for the Development is in compliance with section 34A(2) of the Environmental Quality Act 1974 and accordingly approved the application subject to the conditions as laid down therein (exhibit "AG-9"). Approval of the Penang State Authority for the excision of the Land as "hill land" [17] At all material times when the KM Application was submitted by the applicant to the Second Respondent, there was no endorsement on the issue document of the land title to the effect that the Land is subject to the provision of the Land Conservation Act 1960 (LCA 1960) (Exhibit "AG-20"). [18] However, sometime in September 2011, some six months after the submission of the KM Application, the applicant was informed by the District and Land Office, Barat Daya, Pulau Pinang that the Land had been declared as "hill land" under the LCA 1960. In view thereof, the applicant was advised to apply to the Penang State Authority for the excision of the said Land as "hill land" under the LCA 1960. Application for excision of the Land as "hill land" and Penang State Authority's Approval [19] On 21.12.2011, the Penang State Authority had approved the applicant's application for the excision of the Land as "hill land" under the LCA 1960 subject to conditions as laid down therein from the District and Land Office, Barat Daya, Pulau Pinang's letter dated 18.1.2012 to the applicant (exhibit "AG-10"). [20] The applicant had complied with the condition imposed for the excision of the Land, including, amongst others, payment of a sum of RM1,000,000.00 as "bayaran khas". The revocation of the declaration of "hill land" under the LCA 1960 was confirmed vide Penang State Gazette Notification dated 12.6.2012 (exhibit "AG-11"). Objection to the KM Application by Individual(s)/Resident(s) [21] Following the submission of the applicant's KM Application, the Second Respondent pursuant to section 21(6) of the TPCA 1976 issued notices to the owners of the 15 neighbouring lands, including the appellants/respondents, pertaining to the KM Application and to inform such owners of their right to object to the KM Application. [22] In consequence, the respondent as well as the respective owners of 8 other neighbouring lands lodged their respective objection to the KM Application. A meeting was convened by the Second Respondent on 7.7.2011 pursuant to section 21(7) of the TPCA to hear the objection against the KM Application (exhibit "AG-12"). Approval of KM Application [23] Despite the objection taken by the respective neighbouring land owners, sometime in February 2012, the Second Respondent approved the applicant's KM Application subject to conditions as set out in Borang C(1) dated 21.2.2012 ("Planning Permission") (exhibit "AG-13"). [24] The respective land owners (respondents) were notified by the Second Respondent of the grant of the Planning Permission and of their right under section 23(1)(b) of the TCPA 1976 to lodge an appeal to the State Appeal Board (the Third Respondent), if they so wished (exhibit "AG-14"). Decision of the State Appeal Board [25] Being aggrieved by the Planning Permission granted in respect of the proposed Development, the defendant(s) lodged an appeal to the Penang State Appeal Board (PSAB/the Third Respondent) on 20.3.2012 and the appeal was registered as LR/PP/11/2012. [26] There were eight (8) other appeals that were registered before the PSAB. There were LR/PP/6/2012, LR/PP/7/2012, LR/PP/8/2012, LR/PP/9/2012, LR/PP/10/2012, LR/PP/12/2012, LR/PP/13/2012 and LR/PP/15/2012. At the outset of the PSAB's hearing, all parties involved agreed that since the nine (9) appeals arose out of the same facts, they would be heard together. It was also agreed by all parties involved that the decision in appeal LR/PP/11/2012 would bind the other aforesaid appeals. [27] Only one (1) witness was called to give evidence during the hearing of the six appeals before the Appeal Board, namely Khadijah binti Abdul Karim (AW-1), who is the Penolong Pegawai Perancang Kanan with Jabatan Perancang Bandar dan Desa and who appeared on behalf of the Director of the Jabatan Perancang Bandar dan Desa. [28] At the conclusion of the hearing, on 27.1.2016, the PSAB delivered its decision with regard to appeal LR/PP/11/2012. The respondent's appeal was allowed with no order as to costs, and in consequence thereof, the Planning Permission issued by the Second Respondent was set aside (exhibit "AG 18"). As agreed earlier, the PSAB's decision in appeal LR/PP/11/2012 bound the other 5 appeals. Hence, the other 5 appeals were likewise allowed with no order as to costs. Applicant's Application for Judicial Review [29] Being aggrieved and adversely affected with the decision of the PSAB, that the applicant would be unable to proceed with the proposed Development on the said Land, the applicant filed this Judicial Review (JR) application before the High of Malaya in Penang pursuant to Order 53 Rule 2(4) of the Rules of Court 2012. [30] The application for the JR by the applicant dated 18.4.2016 (Enclosure 4) is, inter alia, for the following orders:

(i) A declaration that the $ 1^{\mathrm{st}} $ Respondent (Penang State Appeal Board/PSAB) had acted illegally and/or irrationally when it allowed the 3rd Respondent's appeal under Appeal No. LR/PP/11/2012 and set aside the Planning Permission bearing reference number JPB/KM/4654/A granted by the Second Respondent (Majlis Bandaraya Pulau Pinang) on 21.2.2012 in respect of the applicant's application for planning permission made under MPPP/OCS/PM(1257)/11(LB) (herein referred to as "the said Decision").

(i) whether the purposive construction of the policies in the Structure Plan and the SPC Guidelines in regard to 'Projek Istimewa' by the Appeal Board is right or otherwise;

(i) Status of the Structure Plan (SP);

(i) Highland areas which is gazetted under the Land Conservation Act 1960;

(a) The Majlis Bandaraya Pulau Pinang (the Second Respondent) had failed to give proper or adequate consideration to section 4.5.2 of the Rancangan Struktur Negeri Pulau Pinang 2020 ("Structure Plan"). "Projek istimewa" under the Structure Plan must mean a project that possesses features which sets it apart from other (usually commercial) projects and cannot simply be what the SPC or the Second Respondent per se says it to be;

(b) The Second Respondent had misconstrued the nature and ambit of Category 2 of "projek istimewa" under the SPC's Guidelines. Subparagraphs (b) and (c) in Category 2 under the Guidelines are mere illustrations and must be read together with subparagraph (a) and as such, subparagraph (c) cannot be treated as a stand-alone provision that constitutes a separate class of exception;

(c) To qualify under Category 2 of "projek istimewa" under the Guidelines, the right to development must have been crystallized or vested before 28.6.2007, the date the Structure Plan came into effect. In other words, there must be an application for "tukar syarat" that had already been approved. As there was none in this case, the proposed Development does not qualify as a "projek istimewa" under the Guidelines and under DK3 L4 of the Structure Plan.

(d) The Second Respondent had not properly and adequately considered that even if the proposed Development can be considered a "projek istimewa", DK3 L4 only allows limited development ("pembangunan secara terhad"). The proposed Development that comprises 600 dwelling units can hardly be termed limited development and as such, the Second Respondent had not correctly applied its mind in respect of the KM Application; and

(e) The purported delegation of powers found in paragraph c(i) of the Guidelines is invalid. The Second Respondent cannot therefore on its own decide that the proposed Development qualified as a "projek istimewa" without reference to the SPC. The appellant/respondent's submission [49] It was submitted for the appellant/defendant that the approval on the proposed Development especially when it is an application involving development affecting sensitive hill lands (hill tops or hill slopes) must come from the SPC and this power cannot be delegated by the SPC to the Majlis Bandaraya Pulau Pinang (MBPP). [50] Reference was made to sections 20A and 22 of the TPCA 1960 which reads as follows: "Section 20A. Duty to consult It shall be the duty of every Federal and State Government department or agency to consult the Committee on any development activity that it proposes to carry out within the State. Section 22. Treatment of application

(c) a development affecting hill tops or hill slopes, in an area designated as environmentally sensitive in a development plan, the Committee shall request from the Council its advice on the application submitted." [51] The Council in this section refers to the National Physical Planning Council, the high-powered body whose functions include the improvement of the physical environment and towards the achievement of sustainable development in the country. [52] Learned counsel for the Plaintiff further submitted that the marginalisation of the SPC's function by delegating its power to an inferior body via paragraph c(i) of the Guidelines, and especially in the context of 'Projek istimewa' and limited development on hill slope, contravenes the intention of the TPCA. It was further argued that the inconsistency with the parent Act renders paragraph c(i) of the Guidelines to be invalid by virtue of section 4(5) of the TPCA. [53] The Appeal Board's ground of decision in this respect were as follows: "The purported delegation of power found in paragraph c(i) of the Guidelines is invalid. The Second Respondent cannot therefore on its own decide that the proposed Development qualified as a "projek istimewa" without reference to the SPC". [54] The Appeal Board basically held that the proposed Development did not qualify as a 'projek istimewa". [55] Reference was also made to paragraph (25) of the Appeal Board's grounds of decision, which was submitted by learned counsel as rightly held by the Appeal Board, as follows: [25] The difficulty with this argument is that, generally speaking, the exercise of a discretion is non-delegable. From paras 5-158 to 5-179 in the (7th Ed) of De Smith's Judicial Review, the following principles relating to the delegation of the exercise of discretion can be called:

(a) Where an authority vested with discretionary powers empowers one of its committees or subcommittees, members or officers to exercise those powers independently without any supervisory control by the authority itself, the exercise of the powers is likely to be held invalid;

(b) The degree of control (before or afterwards) maintained by the delegating authority over the acts of the delegate or sub-delegate may be a material factor in determining the validity of the delegation.

(c) The Carltona principle, which allows 'devolvement' of power rather than 'delegation' of power, is one born of necessity practicality and inevitability. Government machinery will not work if, for example, a Minister is required to personally consider all matters coming under his ministry and to personally make each and every decision therefore." [56] Learned counsel further contended that the learned Judge erred in holding that the SPC's approval of the development plan was not required in this case. [57] In support of his submission, learned counsel relied on inter alia the case of Johnson Tan Han Seng v Public Prosecutor [1977] 2 MLJ 66 FC; and Jill Ireland bt Lawrence Bill v Menteri Bagi Kementerian Dalam Negeri Malaysia & Anor [2015] 3 MLJ 743 CA. The First Respondent/Applicant's submission [58] Learned counsel for the First Respondent/applicant on the other hand, submitted that the SPC Guidelines provides that once a proposed development project has been ascertained to fall within either Category 1 or 2 of the 'projek istimewa', then, "tidak perlu lagi dirujuk kepada Jawatan Kuasa Perancang Negeri bagi mempercepatkan pertimbangan permohonan". [59] The Structure Plan was prepared by the State Director of the Jabatan Perancang Bandar dan Desa (State Director). [60] After the SPC and the State Authority had approved the Structure Plan (SP), the State Director who prepared the SP had examined and reviewed the SP. From the comments obtained from departments which implement the SP, the State Director discovered there were several defects which need to be rectified. [61] It was found that for purposes of implementing paragraph DK3 L4, the SP did not define clearly what is meant by the term 'projek istimewa' and what development will be permitted in areas which has been identified. [62] It was also found that there are overlapping matters in the SP that involve the following:

(i) National Land Code;

(a) Projek-projek infrastruktur utama berkepentingan Kerajaan, untuk kegunaan awam...

(b) Projek-projek istimewa yang dimaksudkan adalah meliputi: i. Projek kereta kabel' ii. Projek keretapi bukit; iii. Apa-apa projek infrastruktur lain berkepentigan Kerajaan dan untuk kegunaan awam yang tidak dapat dielakkan untuk dibina di kawasan dimaksudkan.

(a) Pembangunan perumahan terdahulu di mana permohonan tukar syarat tapak kawasan berkenaan telah diluluskan di bawah perundangan Negeri bagi tujuan perumahan dan kelulusan tersebut telah disahkan sebelum kelulusan dan penerimapakaian RSNPP 2020 [i.e. the Penang Structure Plan 2020];

(b) Antaranya termasuk projek pembangunan yang pernah mendapat kelulusan kebenaran merancang atau;

(c) Tapak yang ditunjukkan sebagai kawasan perumahan mengikut Pelan Dasar Perancangan dan Kawalan Pemajuan MPPP (sehingga RT diwartakan).” [67] The SPC when approving the SPC Guidelines had decided on 26.5.2009 that all applications for planning permission under Category 1 and 2 of 'projek istimewa' is no longer required to be referred to the SPC in order to expedite consideration of the applications. [68] This decision was made pursuant to the power of the SPC under section 4(5) of the TCPA 1976. [69] Section 4(5) of the TPCA provides: "The State Planning Committee and its Functions 4(5). The Committee may from time to time give to any local planning authority directions not inconsistent with the provisions of this Act and the local planning authority shall give effect to such directions." [70] The SPC which had approved the SP and also responsible under section 4 of the TCPA 1976, for inter alia, arranging, controlling, planning and coordinating all planning activities within the State, had approved the SPC Guidelines. [71] On 20.3.2011, the applicant had submitted an application for Planning Permission to the Majlis Bandaraya Pulau Pinang for the proposed Development involving a gated and guarded housing scheme totalling 600 dwelling units on the said Land. [72] The planning application was circulated to all the relevant internal departments of the Majlis Bandaraya Pulau Pinang as well as external departments for their respective comments and requirements. [73] Jabatan Perancang Bandar and Desa (JPBD) confirmed that they had no objection to the proposed Development but subject to the imposed conditions. Likewise, the Jawatankuasa Pengurusan dan Pembangunan Tanah Berisiko of the Jabatan Kerja Raya (JKR) also had no objection to the proposed Development subject to the imposed conditions. The Environmental Impact Assessment (EIA) Report for the proposed Development involving provision DK3 L4 was also approved by the Department of Environment (DOE) as in compliance with section 34(a)(2) of the Environmental Quality Act 1974. The issue document of title of Lot 14345 however had no endorsement that the said Land is subject to the LCA 1960. [74] In view thereof, the Majlis Bandaraya Pulau Pinang proceeded to process the application for Planning Permission for the proposed Development as it came under the Category 2 of the SPC Guidelines without a need to refer or consult the SPC. [75] On 21.2.2012, the Majlis Bandaraya Pulau Pinang granted Planning Permission to the applicant pursuant to section 22(2) of the TPCA 1976,after taking into account all the relevant planning policies and the CPC Guidelines. [76] Six months after the planning application was submitted, the applicant was informed by the Pejabat Daerah dan Tanah Daerah Barat Daya that the Land had been declared as 'hill land' under the Land LCA 1960. [77] The applicant promptly made an application to the State Authority, the highest authority in the State, to apply for the excision of the Land as 'hill land'. [78] On 21.12.2012, the State Authority approved the applicant's application for the excision of the Land as 'hill land' under the LCA 1960. The revocation of the declaration of 'hill land' under the LCA 1960 was confirmed in the State Government Gazette notification dated 12.6.2012. There is no statutory provision that the aforesaid excision must have been done before the coming into force of the Structure Plan. [79] The applicant had complied with all the conditions imposed for the excision of the Land as 'hill land' under the LCA 1960 including payment of a sum of RM1,000,000.00 as 'Bayaran Khas' to the State Authority. [80] Learned counsel for the applicant submitted that the decision of the State Authority to approve the applicant's application for the excision of the Land as 'hill land' under the Land Conservation Act 1960 after the Planning Permission was submitted and subsequently granted by the Majlis Bandaraya Pulau Pinang, only confirms that the State Authority agrees to exempt Lot 14345 from the general prohibition for development. Further, the revocation of the declaration of 'hill land' under the Land Conservation Act 1960 shows that the development proposal which has been submitted can be processed and be given consideration. [81] Before the High Court, the decision of the Appeal Board was challenged on two grounds: firstly, on the basis of illegality or lack of jurisdiction; and secondly, on the basis of irrationality or 'Wednesbury' unreasonableness. [82] On the issue of illegality or lack of jurisdiction, it was contended for the applicant that the Appeal Board is a statutory tribunal 'constituted under section 36 of the TCPA to hear appeal pursuant to section 23 of the Act against the decisions of a local planning authority under section 22(3) of the Act' (per Nik Hashim FCJ in Sri Bangunan Sdn Bhd v Majlis Perbandaran Pulau Pinang & Anor [2007] 5 CLJ 673). [83] Accordingly, the jurisdiction of the Appeal Board is circumscribed by the TPCA. Section 23 of the TPCA, inter alia provides: "23. Appeal against decision of local planning authority

(a) an applicant for planning permission aggrieved by decision of a local planning authority to refuse planning authority permission or by any condition imposed by the local planning authority in granting planning permission; and

(b) a person who has lodged an objection pursuant to section 21(6) and is aggrieved by the decision of the local planning authority in relation to his objection." [84] Learned counsel for the applicant submitted that the SPC Guidelines is not a decision made by MBPP as the local planning authority under section 22(3) of the TPCA. Instead, the SPC Guidelines is formulated by the SPC in the exercise of its power under section 4(5) of the TPCA. [85] It was further submitted that the learned High Court Judge was correct in law when his Lordship held that 'the legality or otherwise of the Guidelines is not the decision of the MPPP that is amenable to appeal before the Appeal Board following the Federal Court decision in Sri Bangunan Sdn Bhd v Majlis Perbandaran Pulau Pinang (supra). [86] On the issue of irrationality/ "Wednesbury" unreasonableness, it was submitted that the Structure Plan is a mere 'statement of policies' and a piece of legislation which is legally binding on all parties. Learned counsel cited the Court of Appeal decision in Abdul Rahman Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur & Anor [2008] 6 CLJ 805 where Abdull Hamid Embong JCA (as he was then) held "...it is also not a piece of legislation which imposes a public duty upon the first respondent to perform any specific act." [87] It was further contended that paragraph c(i) of the SPC Guidelines, which provides that "selaras dengan penetapan dalam perkara b(iv) di atas, maka semua permohonan kebenaran merancang di bawah kategori 1 dan 2 tidak perlu lagi dirujuk kepada Jawatan Kuasa Perancang Negeri bagi mempercepatkan pertimbangan permohonan", is not an outright delegation of the SPC's non-statutory power and/or discretion to determine whether to approve a proposed development as 'projek istimewa' to MPPP. Instead, the SPC had exercised its functions by pre-determining 2 categories of development which constitute 'projek istimewa' under DK3 L4 of the Structure Plan. Thus, if a proposed development falls within any of the 2 predetermined categories of 'projek istimewa', then for expediency, there is no requirement for the application for planning permission to be referred to the SPC for approval. [88] Hence, it was submitted that paragraph c(i) of the SPC Guidelines does not at all give MBPP, as a local planning authority, absolute power and/or discretion to determine on its own whether a proposed development can be approved as 'projek istimewa' or otherwise. In other words, the MBPP need not refer applications for planning permission to the SPC only in situations where the proposed development falls within any of the 2 categories of 'projek istimewa' as pre-determined by the SPC in the SPC Guidelines. [89] This is fortified by the ensuing paragraph c(ii) of the SPC Guidelines which provides that "apa-apa cadangan yang menyimpang dari perkara c(i) di atas, sama ada sesuatu projek berkenaan boleh diklasifikasikan sebagai 'projek istimewa' yang dimaksudkan atau sekiranya apa-apa pertikaian hendaklah hanya diputuskan oleh Jawatan Kuasa Perancang Negeri." Paragraph c(ii) of the SPC Guidelines therefore confirms that where a proposed development does not fall within the four corners of 2 the categories of 'projek istimewa' as pre-determined under the SPC Guidelines, such proposed development shall be referred to the SPC for determination. [90] In this instant case, when granting the Planning Permission or Kebenaran Merancang, MBPP did not on its own motion decide that the proposed development qualified as a 'project istimewa' but instead, had applied the confirmation given by the Jabatan Perancang Bandar dan Desa that the proposed development constitutes a "projek istimewa" as it falls under Category 2 of the SPC Guidelines. Therefore, having regard to the confirmation of the JPBD, which is responsible for carrying out the decisions and implementing the policies of the SPC, and applying the directions of the SPC as set out in paragraph c(i) of the SPC Guidelines, MBPP thus did not refer the Planning Permission application to the SPC for further consideration. [91] MBPP granted the Planning Permission on the basis that part of the said Land is zoned "perumahan am" whilst another part zoned "perumahan ketumpatan rendah" under the Pelan Dasar and as such, the proposed development would come within Category 2 of the definition of "projek istimewa" under the SPC Guidelines. [92] The Appeal Board held that the three (3) subparagraphs of Category 2 of the SPC Guidelines are to be read conjunctively and not disjunctively. [93] For an ease of reference, the 3 paragraphs of Category 2 are reproduced: "(ii) Kategori 2:

(a) Pembangunan perumahan terdahulu di mana permohonan tukar syarat tapak kawasan berkenaan telah diluluskan di bawah perundangan Negeri bagi tujuan perumahan dan kelulusan tersebut telah disahkan sebelum kelulusan dan penerimapakaian RSNPP 2020 [i.e. the Penang Structure Plan 2020];

(b) Antaranya termasuk projek pembangunan yang pernah mendapat kelulusan kebenaran merancang atau;

(c) Tapak yang ditunjukkan sebagai kawasan perumahan mengikut Pelan Dasar Perancangan dan Kawalan Pemajuan MPPP (sehingga RT diwartakan)." [94] Hence, Category 2 of the SPC Guidelines was construed by the Appeal Board to apply only to situations where the right to development must have been crystalised or vested before 28.6.2007 (i.e. the date of the Structure Plan came into force) and there must be an application for "tukar syarat" that had already been approved before the inception of the Structure Plan. [95] The learned High Court Judge held that the Appeal Board was wrong to have read the three subparagraphs of Category 2 of the SPC Guidelines conjunctively. Instead, the learned High Court Judge's objective reading of Category 2 is that subparagraphs (a) and (b) thereof are to be read conjunctively only; subparagraph (b) being an illustration of subparagraph (a), whereas subparagraph (c) is disjunctive and stand-alone provision. [96] It is to be noted that the learned High Court Judge reinforced his interpretation of Category 2 by referring to the unchallenged testimony of Khadijah binti Abdul Karim, the sole witness who appeared before the Appeal Board on behalf of the Director of JPBD. The said witness explained the basis for Category 2 'projek istimewa' under the SPC Guidelines as follows: "Sebelum garispanduan projek istimewa dibentangkan kepada Jawatankuasa Perancang Negeri, ada perbincangan diadakan dengan Majlis Perbandaran Pulau Pinang dan Majlis Perbandaran Seberang Perai bersama dengan pengarah Jabatan Perancang Pembangunan Majlis Perbandaran Pulau Pinang untuk membincangkan tafsiran projek istimewa. Semasa perbincangan, pengarah Jabatan Perancang Pembangunan ada memaklumkan bahawa berdasarkan Pelan Dasar MPPP yang juga telah diluluskan oleh Jawatankuasa Perancang Negeri di mana terdapat beberapa kawasan yang ditunjukkan sebagai kawasan pembangunan bercanggah dengan Rancangan Struktur Negeri 2020. Jawatankuasa Perbincangan Kecil berpendapat kawasan-kawasan yang telah dikenal-pasti sebagai kawasan pembangunan dalam Pelan Dasar MPPP sebahagian darinya ada telah diluluskan kebenaran merancang sebelum Rancangan Struktur Negeri 2020 diwartakan. Adalah tidak wajar untuk mengenepikan atau menidakkan kawasan yang telah dibenarkan untuk pembangunan. Oleh yang demikian, Jawatankuasa Kecil ini telah mengesyorkan supaya kawasan-kawasan yang terdahulunya telah mendapatkan kelulusan perundangan seperti ubah syarat dan juga kebenaran merancang, dan kawasan-kawasan yang telah dikenalpasti sebagai kaswasan perumahan mengikut Pelan Dasar MPPP dimasukkan di bawah kategori projek istimewa kerana kawasan itu tidak termasuk dalam kawasan yang dibenarkan untuk pembangunan dalam Rancangan Struktur Negeri Pulau Pinang.” [97] It is to be noted too that the evidence given by Khadijah binti Abdul Karim before the Appeal Board is consistent with the confirmation by the JPBD via letter 19.4.2011 to MBPP that the proposed development constitutes a 'Projek istimewa' as it falls within Category 2 of the SPC Guidelines. [98] Under section 4(8) of the TPCA 1976, the State Director of Town and Country Planning shall be the principal adviser to the Committee on matters relating to town and country planning and, as Secretary of the Committee, shall be responsible for carrying out the decisions and implementing the policies of the Committee; and in or for the purpose of discharging his functions under this subsection, he may draw upon the financial, manpower, and resources of his department. [99] Hence, the JPBD would in fact be the rightful authority to construe the SPC Guidelines and to confirm the applicability thereof to a proposed development. The JPBD confirmed that the proposed Development of the applicant is a 'Projek istimewa' falling within Category 2 of the SPC Guidelines. It would mean that the proposed Development is in line with the decision and policies of the SPC. In the circumstances, the approval of the SPC is not required. [100] Learned counsel for the applicant further contended that the said Land is a First Grade title land without any restriction of land use. There is no endorsement in the title that the Land is placed under the LCA 1960. Since it is an 'open title' i.e. the First Grade Title, there is no requirement for an application for conversion or 'tukar syarat' to be made by the applicant to the State Authority. And after being informed that the Land is subject to the Land Conservation Act 1960, the applicant promptly made an application to the State Authority for excision of the Land as 'hill land'. The application was approved by the State Authority. Hence, it was also submitted that the applicant did in fact have a legitimate expectation, which has been crystalised and vested prior to the inception of the Structure Plan, that it can develop the said Land into housing project and subject to the approval of Planning Permission by the local planning authority and all the respective government departments. The JPBD, Land Office, DOE, JKR and Jawatankuasa Pengurusan dan Pembangunan Tanah Berisiko all had no objections to the proposed Development. The DOE vide letter dated 16.8.2011 confirmed that the EIA Report for the proposed Development complies with section 34(a)(2) of the Environmental Quality Act 1974 and therefore the EIA Report was accordingly approved. The approval of the EIA Report is in accordance with the requirement of DK3 L4 which provides such development shall obtain EIA approval. The applicant had complied with all the conditions for the excision of the said Land as 'hill land' under the Land Conservation Act 1960 including payment of a sum of RM1 million as 'Bayaran Khas' mandated by the State Authority. [101] To support his argument, learned counsel cited the case of Law Pang Ching & Ors v Tawau Municipal Council [2010] 2 CLJ 821 which made reference to the Federal Court decision in Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1 which held, inter alia that the doctrine of legitimate expectation had both procedural and substantive dimensions. [102] Having in mind that the provisions of the Pelan Dasar and/or the National Land Code could form the basis of a legitimate expectation, it is not a surprise that the SPC recognises the situations by the formulated Category 2 in the SPC Guidelines. [103] It is to be noted that despite the issuance of SPC Guidelines to supplement the application of the Structure Plan, the Pelan Dasar of the MBPP remained in force and applicable since there is no local plan drafted or approved following the Structure Plan coming into force. The Pelan Dasar has never been revoked at all material times. [104] In the circumstances, we agree with the learned High Court Judge that the correct reading of the SPC Guidelines would be that the three subparagraphs of Category 2 of the SPC Guidelines, particularly subparagraph (c) thereof, is to be read disjunctively rather than conjunctively so as to give effect to the true purpose and intention of the SPC Guidelines. We further agree with the learned High Court Judge that subparagraph (c) of Category 2 is a stand-alone category to cover the situations where a particular land has been zoned as 'kawasan perumahan' under the Pelan Dasar of the MBPP before the inception of the Structure Plan and therefore capable of being developed as such. [105] We are of the view that to apply and construe Category 2 of the SPC Guidelines to only on "projects where an application for the change of land use of the plot concerned had already been approved before the coming into force of the 'Penang Structure Plan 2020', as the Appeal Board did, leads to an inconsistency and absurdity, particularly with regard to the applicant's land which is First Grade title without restriction of land use. Accordingly, it would follow that there is no necessity for an application for change of land use or "tukar syarat" to be made and approved first. [106] To our mind, the SPC Guidelines did not 'delegate' the powers and/or discretion of the SPC to determine what is 'Projek istimewa' to the Majlis Bandaraya Pulau Pinang. The SPC Guidelines in fact, forms a direction to the local planning authority to supplement the application of the Structure Plan by defining the categories of 'Projek istimewa'. This direction is issued pursuant to section 4(5) of the TPCA 1976 and the Second Respondent, the MBPP as the local planning authority (guided by the JPBD) is duty bound to give effect to such direction. [107] We further agree with the learned High Court Judge that the Appeal Board in this case had exceeded its jurisdiction as the Appeal Board had committed an error of law in the sense that it has misinterpreted the policy in the SPC Guidelines making its decision unreasonable. [108] In the Court of Appeal case of Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union [1995] 2 CLJ 748 , Gopal Sri Ram JCA (as he then was) held as follows: "In my judgment, the true principle may be stated as follows. An inferior tribunal or other decision making authority, whether exercising a quasi-judicial functions or purely an administrative function has no jurisdiction to commit an error of law. Henceforth, it is no longer of concern whether the error of law is jurisdictional or not. If an inferior tribunal or other public decision taker does make such an error, then he exceeds his jurisdiction. So too is jurisdiction exceeded where resort is had to an unfair procedure (see Raja Abdul Malek v Setiausaha Suruhanjaya Pasukan Polis [1995] 1 CLJ 619), or where the decision reached is unreasonable, in the sense that no reasonable tribunal similarly circumstanced would have arrived at the impugned decision. It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law for the categories of such an error are not closed. But it may be safely said that an error of law would be disclosed if the decision-maker asks himself the wrong question or take into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed an Anisminicerror) or if he misconstrues the terms of any relevant statute, or misapplied or mis-states a principle of the general law. Since an inferior tribunal has no jurisdiction to make an error of law, its decision will not be immunized from judicial review by an ouster clause however widely drafted." [109] We also noted that the applicant did not apply for the maximum density of 30 units/acre for "Perumahan Am". The overall development proposal showed that the proposed density is below than the maximum density. Pursuant to the proposed density, the Majlis Bandaraya Pulau Pinang had processed the development proposal as falling within the meaning of the term a 'Limited Development'. [110] The Appeal Board held that even if the proposed development can be considered as a 'projek istimewa', DK3 L4 only allows limited development ('pembangunan secara terhad') and that the proposed development which consists of 600 dwelling houses "can be hardly be termed as 'limited development' and hence, the MBPP had not correctly applied its mind when granting the Planning Permission (KM). [111] The learned High Court Judge held that the Appeal Board had failed to take into consideration of the following facts:

(a) The Structure Plan itself does not define what is considered as 'pembangunan secara terhad' under DK3 L4;

(b) Having regard to the total area of the said Land, i.e. 80.89 acres, the proposed Development only has an average density of 7.4 units/acre. MBPP had in fact confirmed that as the density of the proposed Development is less than the 'ketumpatan minima', the proposed Development is in fact a 'pembangunan terhad';

(c) The landowner (the applicant) may, subject to payment of development charges, apply to construct up to 909 units of dwelling houses on the Land;

(d) The evidence of the sole witness Khadijah binti Abdul Karim before the Appeal Board had explained that 'dihadkan' or 'terhad' in the context of the Structure Plan merely means 'dengan syarat'. [112] We also noted that the learned High Court Judge further observed that no evidence whatsoever was adduced before the Appeal Board as to what would be considered sustainable or reasonable housing development on the said Land. [113] As alluded earlier, the Structure Plan is a mere 'statement of policy' (see Majlis Pembangunan Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan (supra)). It is also not a piece of legislation which imposes a public duty upon the MBPP to perform any specific act (see Abdul Rahman Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur & Anor (supra). [114] DK3 L1 and L2 of the Structure Plan do prescribe a general prohibition against development on lands situated higher than 76 metres above sea level and/or has a gradient exceeding 25 degrees. However, this prohibition is not absolute and found as an express exception in DK3 L4 for 'Projek istimewa'. The proposed Development falls within that exception as confirmed by the JPBD to the MBPP. [115] In light of the above facts, we fully agreed with the learned High Court Judge that the findings made by the Appeal Board that the proposed Development cannot constitute 'pembangunan terhad' under DK4 L4 of the Structure Plan is subjective, arbitrary and unreasonable under Wednesbury principles. [116] We also find no basis to conclude that the learned High Court Judge was plainly wrong on the issue of the interpretation of the SPC Guidelines. We are in total agreement with the learned High Court Judge on his findings. STATUS OF STRUCTURE PLAN [117] We shall deal now on the first issue, the status of Penang State Structure Plan (SP). [118] The learned High Court Judge held that the SP "is merely one of policy" and did not bind the planning authority. [119] Both the decision of the Appeal Board as well as the High Court also revolve around the Rancangan Struktur Negeri Pulau Pinang 2020 (RSNPP 2020) and in particular "Dasar Khusus 3 (DK3)". Hence, it would be pertinent to determine the status of the said SP. [120] The RSNPP 2020 is the structure plan currently in force in the State of Penang, having been approved by the State Planning Committee and assented by the State Authority under the provisions of the TCPA 1976. [121] The scope and purpose of the plan is reflected in the introductory words to the RSNPP 2020 as follows: "Rancangan Struktur Negeri Pulau Pinang (RSNPP) 2020 disediakan selaras dengan kehendak dan peruntukan Bahagian Ill Akta Perancangan Bandar dan Desa 1976 (Akta 1972). Penyediaan RSNPP ini adalah untuk melengkapkan sistem perancangan fizikal di samping menterjemahkan dasar-dasar Rancangan Fizikal Negara (RFN). Ini juga bertujuan untuk menyelaraskan dasar-dasar Rancangan Pemajuan sedia ada di samping saling melengkapi perancangan Pembangunan Negeri semasa dan masa hadapan. RSNPP merupakan satu dokumen pernyataan bertulis mengandungi dasar-dasar perancangan strategik dan cadangan-cadangan Pembangunan kegunaan tanah serta hala tuju perancangan masa hadapan bagi Negeri Pulau Pinang. lanya disokong dengan Gambar Rajah utama serta Pelan-pelan Subjek bagi memperjelaskan dasardasar perancangan Strategik dan cadangan-cadangan yang dikemukakan." (emphasis added) [122] In "Malaysian Town and Country Planning Law and Procedure", the learned author described a structure plan as follows: "A structural plan is a written statement of the state's strategic policies and proposals containing general land use proposals without providing precise allocations and containing the broad framework for planning in the state's area. Basically structure plans have three functions. First, a structure plan should explain the policy and general proposals of the development and use of land in that State; thereby giving guidance on issues of structural importance. Secondly, structure plan must demonstrate the integration and utilization of national and state policies within the state. Finally, there were to provide the basis for local plans." [123] Section 8(3) of the TCPA provides as follows: "The draft structure plan for the State shall be a written statement:-

(a) formulating the policy and general proposals of the State Authority in respect of the development and use of land in that State, including measures for the improvement of communications, the management of traffic, the improvement of socio-economic well-being and the promotion of economic growth, and for facilitating substantial development;

(b) stating the relationship of those proposals to general proposals for the development and use of land in the neighbouring areas that may be expected to affect that areas; and

(c) containing such other matters as may be prescribed of as the Council or Committee may in any particular case specify." (emphasis added) [124] From the express provisions of section 8(3) of the TCPA, a structure plan is therefore merely a document setting out a State's general planning policies in respect of the development and use of land to be implemented in that State. [125] Section 22(2) of the TCPA provides, inter alia, as follows: "In dealing with an application for planning permission, the local training 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; (aa) the direction given by the Committee, if any ...". [126] "Development plan" is defined under section 2 of the TCPA as follows:- "(a) the local plan for the area; or

(b) if there is no local plan for the area, the structure plan for the area." [127] Learned counsel for the respondent submitted that all developments undertaken by the land owner must comply with the SP. SP is a sacrosanct document. It was further submitted that the SP contains absolute prohibition on the grant of development permission i.e. for housing, hotels, resort, commerce, industry, agriculture on hill land above 250 feet which has a gradient exceeding 25 degrees. It was also submitted that the SP superseded the Pelan Dasar which is only applicable to the 1987 Penang Structure Plan. Thus, the MBPP cannot make use the Pelan Dasar in allowing the applicant's application for the proposed Development. The SP was approved in 2007 and gazetted on 28.6.2007. Hence, the SP has legal status and cannot be disregarded (Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasa-sama Serbaguna Sungai Gelugor dengan Tanggungan (supra). It was also contended that under section 22(4) of the TPCA there is an absolute bar to the grant of planning permission if the development would contravene any provision of the development plan. It was submitted that the learned High Court Judge relied on section 22(2) but had failed to take into consideration section 24(4) of the TPCA that bar the granting of planning permission if the development would contravene any provision of the development plan. Thus, the granting of the Planning Permission by the MBPP is flawed. Learned counsel cited the case of R v Wychavon District Council [2014] EWHC; and Tesco Stores Ltd v Dundee City Council [2012] UKSC1 to support his argument. [128] These cases make the following points:

(i) The development plan is a carefully drafted and considered statement of policy. It guides the decision of the planning authorities.