Tan Bun Teet v Jawatankuasa Perancang Negeri Pahang (C-01(A)-288-06/2023)

GADING SENGGARA SDN BHD (201201026064 (1010554-M)) …RESPONDEN-RESPONDEN DAN LYNAS MALAYSIA SDN BHD [NO. SYARIKAT: 200601032530] …RESPONDEN/PENCELAH [Dalam Perkara Mahkamah Tinggi Malaya di Kuantan Dalam Negeri Pahang Darul Makmur Permohonan Semakan Kehakiman No.: CA-25-5-07/2022 Dalam Perkara permohonan kebenaran merancang bagi pembangunan Kemudahan Pelupusan Kekal (KPK) di atas Lot 31375, Mukim Sungai Karang, Daerah Kecil Gebeng, Kuantan, Pahang yang dikemukakan pada 08.12.2021 Dan Dalam Perkara pemberian kebenaran merancang bagi Kemudahan Pelupusan Kekal (KPK) di atas Lot 31375, Mukim Sungai Karang, Daerah Kecil Gebeng, Kuantan, Pahang oleh Majlis Bandaraya Kuantan pada 28.01.2022 Dan Dalam Perkara pemberitahuan pemberian kebenaran merancang melalui surat bertarikh 21.04.2022 daripada Majlis Bandaraya Kuantan kepada Pemohon Dan Dalam Perkara Seksyen 20B, 22(2A)(b) dan 22(4) Akta Perancangan Bandar dan Desa 1976 Dan Dalam Perkara Aturan 53, Kaedah-Kaedah Mahkamah 2012 Dan Dalam Perkara Aturan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012 Antara Tan Bun Teet (IC. No.: 480425-06-5121) …Pemohon

Jawatankuasa Perancang Negeri

Majlis Bandaraya Kuantan

Gading Senggara Sdn Bhd (201201026064 (1010554-M)) …Responden-Responden Dan Lynas Malaysia Sdn Bhd [No. Syarikat: 200601032530] …Pencelah] CORAM: CHE MOHD RUZIMA BIN GHAZALI, JFC. MOHD FIRUZ BIN JAFFRIL, JCA. ONG CHEE KWAN, JCA.

The Appellant, Tan Bun Teet appeals against the decision of the learned High Court Judge, Dato’ Haji Zainal Azman (“the learned HCJ”) on 30.5.2023 (“the HC Judgment”), dismissing the Appellant’s Judicial Review Application dated 18.7.2022 (“the JR Application”) filed pursuant to Order 53 of the Rules of Court 2012 (“ROC 2012”).

The JR Application was filed to challenge the validity of a Planning Permission dated 28.1.2023 (“the Planning Permission”) granted by the 2nd Respondent, Majlis Bandaraya Kuantan for the construction and development of a Permanent Disposal Facility (“PDF”) for Water Leach Purification (“WLP”) waste on a land known as Lot 31375, Gebeng Industrial Estate, Mukim Sungai Karang, Kuantan, Pahang (“the Land”).

The Appellant contends that the Planning Permission is void and of no effect because the same was issued without complying with the mandatory provisions of sections 20B(1)(b)(ii), 22(2A)(b), and or 22(4) of the Town and Country Planning Act 1976 (“TCPA 1976”). In this regard, the Appellant contends that: a) the Planning Permission was issued without seeking the advice of the National Physical Planning Council (“NPPC”) as required under Section 20B and or Section 22(2A) TCPA 1976; b) the Planning Permission was issued in contravention of the Kuantan Local Plan 2035 (Replacement) (“the Local Plan”) as provided for under Section 22(4)(a) TCPA 1976.

The Appellant’s contentions did not find favour with the learned HCJ, who also found that the JR Application was not filed within the time stipulated in Order 53 of the ROC 2012. After hearing extensive oral submissions from counsel, we found no appealable errors by the learned HCJ in the HC Judgment, and we dismissed the appeal with costs.

This judgment deals with a challenge to the Planning Permission granted for the PDF for radioactive waste, raising three interrelated issues of law and discretion. First, the Court considers whether the application was commenced promptly, as required in judicial review proceedings. Secondly, the Court must determine whether, on a proper construction of the TCPA 1976, the planning authority was obliged to refer either the proposed development or the planning permission to the NPPC. Thirdly, and in any event, the Court is invited to decide whether time ought to be extended in the exercise of discretion or relief ought to be refused, having regard to the fact that the PDF facility has since been fully constructed and is operational, and that no discernible or substantiated risk to public safety or the environment has been demonstrated even assuming there are merits advanced to the application.

The Appellant, who is the Applicant in the JR Application, is not a resident of Gebeng, Kuantan, Pahang. He resides approximately twenty-eight (28) kilometres away from the Land at an address known as No. 1, Lrg Galing 12, Jalan Haji Ahmad, 25300, Kuantan, Pahang.

The Appellant is the chairperson of an informal and unregistered action committee, Save Malaysia Stop Lynas (“SMSL”).

The 1st Respondent is the planning authority for the State of Pahang and its functions are, inter alia, to promote in the State of Pahang, the conservation, use and development of all lands in the State. The 1st Respondent may, from time to time, give to any local planning authority directions and the local planning authority shall give effect to such directions [Sections 4(4) and 4(5) TCPA 1976].

The 2nd Respondent is the local planning authority for Kuantan and its functions are, inter alia, to regulate, control, and plan the development and use of lands and buildings within the municipality of Kuantan. The 2nd Respondent is authorised to prepare a draft local plan for Kuantan after taking into account any directions given by the 1st Respondent [Sections 12(4), 12(8) and 12(9) TCPA 1976].

Once the draft local plan is submitted and approved by the 1st Respondent either in whole or in part, the 1st Respondent will submit the approved draft local plan for the assent of the State Authority [Sections 15(1A), 15(1B) and 15(1C) TCPA 1976].

It is the 2nd Respondent who granted the Planning Permission to the 3rd Respondent for the construction development of the PDF for the storage of WLP waste on the Land.

The 3rd Respondent, Gading Senggara Sdn Bhd, is the beneficial owner of the Land and has been engaged by the 4th Respondent to carry out a development known as “PEMBANGUNAN PERINDUSTRIAN (KEMUDAHAN PELUPUSAN KEKAL), DI ATAS SEBAHAGIAN LOT 31375 (PN 19314), DAERAH KECIL GEBENG, DAERAH KUANTAN, PAHANG DARUL MAKMUR” (“the Development”) on part of the Land measuring 62.393 acres. The PDF is to be constructed and or developed on the Land, which is located adjacent to and shares the same border with the 4th Respondent.

The 4th Respondent, Lynas Malaysia Sdn Bhd, is a company incorporated in Malaysia on 6.11.2006 to develop and operate a privately owned rare earth processing plant, namely the LAMP, located in Gebeng Industrial Park, Kuantan, Pahang.

The LAMP is not only a cracking and leaching plant because the LAMP, which functions as a rare earth processing plant, treats the Lanthanide Concentrate produced at the Mt Weld mine in Western Australia using chemicals and utilities primarily sourced in Malaysia and produces separated Rare Earths Oxide (“REO”) products for sale to customers around the world. It is only in the process of producing rare earth products that the LAMP generates two (2) major solid residues, including the Neutralization Underflow Residues (“NUF”) and the WLP.

The 4th Respondent is the only major producer of rare earth products outside China, wherein it supplies approximately 15% by volume of the world's rare earth products. The 4th Respondent operates the world’s largest rare earth production facility in Gebeng, Pahang.

The 4th Respondent’s rare earth products (which consist of 15 metallic elements with magnetic, catalytic, and optical qualities) are key inputs for critical global supply chains, including automotive, electronics, and appliances.

As alluded to above, in the process of producing rare earth products, the LAMP generates two major types of solid residues, namely, the NUF residue and the WLP residue. Insofar as the NUF is concerned, it is regulated by the Department of Environment (“DOE”) whilst the WLP residue, which contains a low level of radioactive material, is regulated by the AELB Board under the provisions of the Atomic Energy Licensing Act 1984 (“AELA 1984”).

Accordingly, the WLP residue is relevant for the Licence issued by the AELB Board to the 4th Respondent, namely Licence LPTA/A/1333. The NUF residue, on the other hand, is not relevant for Licence LPTA/A/1333.

The WLP residue is presently stored on site in dedicated approved storage facilities, the design, construction, and operation of which are approved by the AELB Board.

The 4th Respondent has been issued with the following Licences by the AELB Board pursuant to the AELA 1984 to operate the LAMP between 3.9.2012 and 2.3.2023:

the Temporary Operating Licence for the period of 3.9.2012 to 2.9.2014 (“the First Licence”);

the Full Operating Licence for the period of 3.9.2014 to 2.9.2016 (“the Second Licence”);

the Full Operating Licence for the period of 3.9.2016 to 2.9.2019 (“the Third Licence”);

the Full Operating Licence for the period of 3.9.2019 to 2.3.2020 (“the Fourth Licence”);

the Full Operating Licence for the period of 3.3.2020 to 2.3.2023 (“the Fifth Licence”); and

the Sixth Operating Licence for the period of 3.3.2023 to 2.3.2026 (“the Sixth Licence”).

Insofar as the Fifth Licence is concerned, the 4th Respondent is required by the AELB Board under the AELA 1984 as part of its Fifth Licence conditions to construct the PDF. It is in this context that the 4th Respondent engaged the 3rd Respondent to construct and develop the said PDF in compliance with the Fifth Licence conditions.

Insofar as the Sixth Licence is concerned, the 4th Respondent is required to comply with Condition 31 imposed by the AELB Board on the progress of the construction and development of the PDF.

The 4th Respondent was not made a party to the JR Application, and leave was given for the 4th Respondent to intervene and be a party to the proceedings.

In the application for obtaining the Planning Permission for the PDF from the 2nd Respondent, an EIA Report was submitted to the DOE pursuant to the provisions of the Environmental Quality Act 1974 (“EQA 1974”). Significantly, the Appellant had participated in the challenge to the EIA Report. More will be said of this below.

On 28.12.2021, the Director General of the DOE approved the EIA Report submitted by the 4th Respondent (“EIA Approval”). This was one of the preconditions for the Planning Permission.

On 28.1.2022, the 4th Respondent obtained the Planning Permission from the 2nd Respondent in respect of the construction and development of the PDF, and on or around 23.2.2022, the 4th Respondent began the construction works of the PDF at the Land in respect of which the PDF is to be constructed and or developed pursuant to the Planning Permission granted.

The Appellant contends that he was only notified of the Planning Permission on 21.4.2022, even though his letter enquiring about the same was delivered to the 2nd Respondent on 22.2.2022. The Appellant had collected the letter from the 2nd Respondent informing of the Planning Permission date only on 26.4.2022.

It is pertinent to note that the Appellant, together with certain other individuals, had on 27.1.2022, lodged their respective appeals to the Appeal Board under Section 35(1) of the EQA 1974 against the decision of the DOE in granting the EIA Approval (“the EIA Appeals”).

On 2.3.2022 and 16.3.2022, the Appellant had filed Grounds of Appeal and an Amended Notice of Appeal, respectively, in the EIA Appeals. Of relevance is that at paragraph 1.1 of the Grounds for the EIA Appeals, the Appellant had relied on Sections 20B and 22(2A)(b) of the TCPA 1976 to contend that the 2nd Respondent ought to have sought the advice of the NPPC before granting the Planning Permission to the 3rd Respondent.

On 27.10.2023, the Appeal Board dismissed the EIA Appeals. The Appellant has not filed a judicial review to challenge the DOE Appeal Board Decision.

The Appellant has not filed an appeal against the decision of the AELB to approve a report known as “Radiological Impact Assessment of The Water Leach Purification (WLP) Residue Permanent Disposal Facility at Lot 31375, Gebeng, Industrial Estate, Pahang (September 2021)” which has taken into account all matters relating to the “storage” and “PDF design” on the Land.

On 18.7.2022, the Appellant filed the Judicial Review Application to challenge the Planning Permission granted by the 2nd Respondent to the 3rd Respondent.

On 30.5.2023, the Kuantan High Court dismissed the application.

Before us, the parties canvass the following issues for our determination, namely, that: a) the Appellant does not have the necessary locus standi to object to the Planning Permission; b) the Appellant does not have the right accorded in law to seek to object and or be heard under Section 21(6) of the TCPA 1976; c) the JR Application is filed out of time and does not conform with the mandatory requirements of Order 53 Rule 3(6), (7) and (8) of the ROC 2012; d) there is no mandatory obligation to consult the NPPC on a private project involving two (2) private entities; e) the PDF site does fall within the definition of a major infrastructure or utility or a national infrastructure on a proper construction of Section 22(2A)(b) read with Section 22(2B) of the TCPA 1976; f) the PDF site is meant for WLP residue which is a “radioactive” WLP residue as opposed to a “toxic waste”, and as such, there is no duty to seek advice from the NPPC; g) the Planning Permission granted to 3rd Respondent in respect of the PDF site is consistent with the directive issued by the State Planning Committee, in respect of which the 2nd Respondent, as the local planning authority, has complied with under Section 22 of the TCPA 1976.

Order 53 r 2 (4) of the ROC 2012 provides: “Any person who is adversely affected by the decision of any public authority shall be entitled to make the application.” [emphasis added]

It is contended that the Appellant has no locus standi because he is not adversely affected by the Planning Permission as he is not someone living in proximity of the PDF facility nor is he the owner of the neighbouring land as defined under section 21(6), (7) and (8) of the TCPA 1976. In short, the Appellant has not demonstrated a genuine interest in the subject matter.

On the issue of locus standi, this Court accepts that the Appellant has locus standi. It is on record that the Appellant has been involved in numerous litigations relating to the present and related subject matter without any objection raised to his locus standi. The aforesaid necessarily suggests that the Appellant’s interest has been consistently regarded as real and not merely academic. To be consistent, we see no reason to entertain the challenge to his locus standi in this appeal.

In any case, we respectfully disagree with the contention that because the Appellant is not an owner of the “neighbouring lands” as defined by section 21 of the TCPA 1976, it must follow that the Appellant has no locus standi in this case. The test for locus standi is whether the Appellant has been directly and adversely affected by the planning approval and not whether he is the owner of the neighbouring lands where the PDF facility is sited.

We also reject the contention that because the public has a right to make representations or objections before the approval and gazettement of a draft local plan, it means that the Appellant is precluded from being an adverse party with locus standi. The statutory right to participate in the planning process does not negate a person’s ability to challenge a decision that ultimately infringes on their interests or rights. As long as the Appellant can demonstrate that he is directly and adversely affected by the decision, it is sufficient to establish locus standi [See: Datuk Bandar Kuala Lumpur v. Perbadanan Pengurusan Trellises &

Order 53 rule 3(6) ROC 2012 reads as follows: “(6) An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the Appellant.” [emphasis added]

The failure to comply with the mandatory time frame provided by Order 53 rule 3(6) ROC 2012 is fatal for the JR Application. The Federal Court in Kijal Resort Sdn Bhd v. Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544 (FC) at paras. [122] to [124] held that: “[122] A prompt action to apply for a judicial review is therefore necessary, for non-compliance with the requirement, as to the time frame to file the application would result in the court not having jurisdiction to hear the application right from beginning. The Court of Appeal in the case of Abdul Rahman bin Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur & Anor had correctly ruled that: Thus, compliance with the time frame is fundamental. It goes to the starting point, that of jurisdiction to hear the application. This was clearly expressed by Hashim Yeop Sani FJ in Ravindran v Malaysian Examinations Council [1984] 1 MLJ 168; [1984] 1 CLJ 320; in the following passages: In our view of whole issue is clearly one of jurisdiction. In the event only the first consideration of the judge is relevant. Since the judge rejected the explanation for the delay it follows that the court had no jurisdiction to hear the application for leave for an order of certiorari. Whether the application for an order of certiorari had merits or not was irrelevant. This principle is implicit in Mersing Omnibus Co Sdn Bhd v Minister of Labor and Manpower. There had been no jurisdiction to hear the application for certiorari because O 53 r 1A of the Rules of the High Court 1980 expressly direct that leave shall not be granted unless the application is made within six weeks after the date of the proceeding. [123] In that case, the Court of Appeal concluded that: Based on the authorities mentioned above, we are of the view that leave to apply for this judicial review should not therefore have been granted to the appellants since the learned judge had no jurisdiction to allow it in the first place due to the appellants’ unaccountable breach of O 53 r 3(6) of the RHC. [124] Applying the same principle to the facts of the present case, we are of the view that the High Court has no jurisdiction to hear the appellant’s application for judicial review on the ground that the time frame of 40 days under O 53 r 3(6) of the RHC 1980 has not been complied with. On this ground alone, we are in agreement with the Court of Appeal that the respondent’s first objection must be upheld and the judicial review application by the appellant ought to be dismissed in limine; and consequently, the appellant’s appeal before us must also be dismissed.” (emphasis added)

The Appellant contends that he received the communication of the Planning Permission dated 28.1.2022 only on 26.4.2022, even though the Appellant had written to the 2nd Respondent on 22.2.2022 enquiring about the same.

However, notwithstanding the receipt of the communication on 26.4.2022, the JR Application was filed only on 18.7.2022, a mere 7 days before the expiry of the 3 months stipulated in O. 53 r.3(6), ROC 2012.

In this regard, the Appellant contends that the JR Application was filed within the time stipulated as the 3-month period under O. 53 r.3(6) is to be calculated from 26.4.2022, when he was actually notified of the Planning Permission, and, in any event, the Appellant has prayed for an extension of time. Learned counsel for the Appellant also urges this Court that an application of such an important public interest matter ought not to be dismissed purely because it was not filed promptly.

Based on the facts before us, we find that the Appellant has been actively involved in challenging the construction of the PDF facility at almost every stage of its development. In fact, the evidence disclosed that the Appellant was aware of the commencement of construction at the PDF, as he himself conceded that he would pass through the site daily. He must know that construction can only begin after the Planning Permission has been obtained. Planning Permission is, after all, a precondition to carrying out any development.

Further, the Appellant himself alluded to the need for the referral of the development proposal to NPPC in his affidavits filed in his appeal to the EIA Board challenging its decision on the EIA Report. More specifically, at paragraph 1.1 of the Appellant’s Grounds for the EIA Appeal, he relied on Sections 20B and 22(2A)(b) of the TCPA 1976 to contend that the 2nd Respondent ought to have sought the advice of the NPPC before granting the Planning Permission to the 3rd Respondent: “1.1 Sections 20B and 22(2A)(b) of the Town and Country Planning Act 1976 (TCPA) impose a mandatory duty on the part of the authorities to seek advice from the National Physical Planning Council (NPPC) established under section 2A of the TCPA, for a development proposal such as that of the ‘Proposed Development of a Dedicated Permanent Disposal Facility (PDF) for The Water Leach Purification Residue (WLP) at Gebeng on Lot 31375, Gebeng Industrial Estate (GIE), Mukim Sungai Karang, Kuantan, Pahang,’ (hereinafter referred to as the ‘PDF’), and such a duty to seek advice has not been sought by the state government Thus, based on the evidence before the Court, the Appellant was already aware of the grounds for the application as early as February 2022. [emphasis added]

We agree that based on the aforesaid, the Appellant must surely have known, at the time the EIA Appeal was filed or by the time the Appellant filed his Grounds of Appeal and an Amended Notice of Appeal, that the Planning Permission had already been issued as otherwise the Appellant would not have raised the issues relating to the purported non-compliances with Sections 20B and 22(2A)(b) TCPA 1976 in the EIA Appeal which are the same issues raised by the Appellant in this JR Application. Accordingly, when the Appellant filed the JR Application on 19.7.2022, more than 4 to 5 months had already lapsed.

O. 53 provides that an application for judicial review must be made “promptly and in any event within three months” from the date when “the grounds of application first arose or when the decision is first communicated”. There are 2 distinct requirements: the application must be made promptly, and the utmost limit requires the application to be made within 3 months from either the date when the grounds of application first arose or when the decision was first communicated. Since the grounds of the application were already known to the Appellant at the time of the EIA Appeals sometime in February or March 2022, the JR Application filed only on 19.7.2022 must be dismissed in limine, as the 3-month outer limit has been exceeded.

In any case, it is our view that even if the JR Application was filed within the 3-month stipulation in O. 53, that is, that the time starts to run from 26.4.2022 when the Appellant collected the letter dated 21.4.2022 from the 2nd Respondent, that may not be sufficient by itself. Under O 53, an applicant must act “promptly”, and the failure to act promptly is independently fatal, even if the application is technically filed within time. The rationale is stated in Hardy v Pembrokeshire County Council [2006] EWCA Civ 240, para [10] as follows: “It is important that those parties, and indeed the public generally, should be able to proceed on the basis that the decision is valid and can be relied on, and that they can plan their lives and make personal and business decisions accordingly”.

We also draw support from the case of Finn-Kelcey v.Milton Keynes Council [2008] EWCA Civ 10676 (HL) and Re Musgrave Retail Partners (Nl) Limited; Re Department of the Environment (Planning Services) [2012] NIQB 109. In this regard, the Appellant contends that Finn-Kelcey ought to be distinguished because the statutory provision referred to and applied therein, namely Rule 54.5 Civil Procedure Rules 1998 (UK) (“CPR (UK)”), prescribes that different timelines apply to judicially review the decision(s) of different authorities (e.g. three (3) months for a decision made by the planning authorities, six (6) weeks for a decision made by the secretary of state, etc.).

We respectfully disagree. Notwithstanding the differing timelines that may apply to judicially review the decision(s) of different authorities, the critical requirement of Rule 54.5 CPR (UK) is that a judicial review application be filed “promptly”. Consequently, such a distinction is irrelevant as both Rule 54.5 CPR (UK) and Order 53 rule 3(6) ROC 2012 require a judicial review application to be filed “promptly”, and the same interpretation of the word ought to apply. That the Court in Finn-Kelcey had arrived at the requirement of promptness from the word “promptly” in Rule 54.5 CPR (UK) and not the six (6) week timeline in the TCPA (UK) can be seen in para [29] of the judgment: “[29] In all circumstances, I conclude that Collins J was correct in finding that this claim had not been lodged promptly and so did not comply with CPR 54.5. ...” [emphasis added]

Taking the receipt of the letter informing the Appellant about the Planning Permission on 26.4.2022 as the starting date, the Appellant also did not act promptly, but filed the JR Application just a few days before the expiry of the 3 months. In this connection, we respectfully disagree with counsel for the Appellant’s contention that we should not follow the UK position that makes “prompt” filing an independent requirement. We are of the view that the word “promptly” in O. 53 is not inserted purely for ornamental value. In fact, this Court has in Abdul Rahman bin Abdullah Munir & Ors v. Datuk Bandar Kuala Lumpur & Anor [2008] 6 MLJ 704 adopted the jurisprudence set out by the House of Lords in Griffiths & Anor v. Secretary of State for the Environment & Anor [1983] 2 WLR 172 (HL) as to why prompt action is needed, especially in planning cases: “[70] The time frame for taking action as provided under O 53 r 3(6), is more projects undertaken upon permission given by a local authority such as this. In Griffiths & Anor v Secretary of State for Environment & Anor [1983] 2 AC 51, the House of Lords emphasised on the need to carry out a proposed development without fear of any certainty in a situation where planning permission is required to undertake a project. Lord Bridge made this observation: The six weeks' time limit is of much greater importance in a case where the decision was to grant planning permission. Six weeks after the Secretary of State has granted permission for development on appeal, the Appellant for that permission should be in a position to proceed with confidence to carry out the development or to buy or sell the land with the benefit of the permission. But if time does not start to run until all interested parties have been given notice of the decision, and if, by some administrative oversight, the decision was never communicated either to the local planning authority or to a tenant farmer, the permission would be liable to be invalidated after the development had been carried out or the land had changed hands at a price reflecting the value of the planning permission. I do not believe such a bizarre result can have been intended.” [71] The above case may be used by way of analogy in this appeal since the project on the buffer land had proceeded with the approval of the first respondent although no planning permission was needed. [72] Based on the authorities mentioned above, we are of the view that leave to apply for this judicial review should not therefore have been granted to the appellants since the learned judge had no jurisdiction to allow it in the first place due to the appellants' unaccountable breach of O 53 r 3(6) of the RHC.” [emphasis added]

In short, because planning decisions involve public interest, investment, and reliance on approvals, any undue delay may prejudice third parties and can result in dismissal on grounds of laches even if the substantive complaint has merits. Thus, where EIA is conducted, or construction has commenced, the Court will scrutinise any delay closely and may refuse relief on grounds of delay alone.

We find that the facts of this case, as enumerated, support our conclusion that the JR Application has not been filed promptly. This means that the Court did not have the necessary jurisdiction to hear the matter right from the beginning [See: Kijal Resort Sdn Bhd v. Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544].

55.

As regards the prayer for extension of time, we note that in the present case: a) The 3rd Respondent’s PDF facility had already satisfied 2 regulatory approvals, both of which entailed engaging with specialist statutory bodies, namely: i) Environmental Impact Assessment (EIA) approval, which decision was upheld on appeal by the EIA Board, with no further judicial review pursued. This means that the environmental impact of the PDF facility was vetted through the EIA process, and ii) Atomic Energy Licensing Board (AELB) approval, for which we are made to understand that the judicial review application was dismissed by the High Court. The AELB is the statutorily designated expert authority, and it has approved the PDF facility, and the court has already dismissed a direct challenge to that approval.

The aforesaid is significant because it means that the core environmental and radiological safety concerns have been substantively examined already.

Crucially, the Appellant was actively involved in both the regulatory approval processes. In fact, the Appellant has exhausted or abandoned challenges in the specialist fora best equipped to assess risks. Since no appeal or review is pending against those determinations, the Court must be guarded to see that the JR Application against the Planning Permission is not in truth a collateral attack on decisions of the EIA Board and AELB, and that the specialist tribunals’ determinations are not to be circumvented through general planning challenges. In other words, unsuccessful challenges at the EIA Board and the AELB should not be repackaged under different statutory routes.

Another significant fact is that the construction of the PDF facility is already completed, and as at the date of this appeal, a fully operational facility is handling regulated radioactive waste. In fact, at the time of the hearing of the appeal, Cell A and Cell C (2 out of the 4 Cells) are already filled with radioactive waste and capped. The construction of the PDF facility was based on multiple lawful approvals. The disruption to the operation of the PDF facility will lead to unnecessary risks to the public and waste management systems. In fact, the public interest now aligns with regulatory certainty and continuity, not intervention. Furthermore, the Appellant had opted to withdraw its application to stay the construction of the PDF facility pending the determination of the JR Application, and thus has acquiesced to the construction and completion of the facility. This has permitted irreversible reliance to arise.

Accordingly, based on the above considerations, we see no reason to exercise our discretion to extend the time for the JR Application at all. Based on this ground alone, the appeal must be dismissed.

We would add that whilst we agree that matters of public importance ought not, as far as possible, be dealt with merely on technical objection, this case involves more than a procedural objection simpliciter. Promptness in challenging planning permission is not formalism but serves important public purposes. It is necessary for the certainty of public administration, protection for third parties who relied on the planning approval, and to prevent disruption and chaos in the operation of infrastructure. Whether Section 20B(1)(b)(i) and Section 22(2A)(b) TCPA 1976 are applicable

“a major national infrastructure” and “a major infrastructure or utility”

In 2017, the TCPA 1976 was amended to include section 20B by the Town and Country Planning (Amendment) Act 2017, which came into force in Pahang on 1.11.2017.

Section 20B imposes a duty on every Federal Government and State Government department or agency to seek advice from the NPPC in relation to development proposals relating to “any construction of a major national infrastructure, including toxic waste disposal sites”.

Section 22(2A) in Part IV of the TCPA 1976 deals with the treatment of planning applications for planning permissions. More specifically, it provides that when an application for planning permission involves the development of a construction of “any major infrastructure or utility”, the State Planning Committee (“SPC”) must refer the application to the NPPC for its advice. Section 22(2B) provides that the development for the construction of major infrastructure or utility shall include “toxic waste disposal sites”.

The introduction of section 20B and section 22(2A) in the TCPA 1976 and the pivotal role by NPPC in ensuring uniformity and coordination between the Federal and State Governments, particularly, with regards to environmental protection and sustainable development has been dealt at length by our Federal Court in Perbadanan Pengurusan Sunrise Garden Kondominium v. Sunway City (Penang) Sdn Bhd & Ors And Another Appeal [2023] 2CLJ 333.

The Appellant contends that in the present case, the PDF facility was never referred to the NPPC under section 20B at the development proposal stage, and or under section 22(2B) TCPA 1976 at the development planning permission stage, despite being acknowledged as a “toxic waste disposal site” and being “a major infrastructure or utility”. These failures render the Planning Permission invalid, null, and void.

With respect, we do not agree.

Under the TCPA 1976, mandatory referral to the NPPC is triggered only where the proposed development falls within specified categories. In this case, the relevant category is commonly described as “a major national infrastructure” or “a major infrastructure or utility” as stipulated in sections 20B(1)(b)(i) and 22(2A)(b) TCPA 1976, respectively.

The word “infrastructure” is often understood functionally to mean assets, systems, or facilities that are essential for a society or country to function and support the economy and social activity. Thus, “a major infrastructure or utility” must necessarily refer to infrastructure or utility of significant scale or capacity, which may or may not be “national” in scope. To our mind, “a major national infrastructure” generally refers to large-scale, strategically important facilities or systems that are essential to the functioning, security, and economic or social well-being of the country. Typically, it would have nationwide or interstate significance, rather than purely local impact.

On the facts, the PDF waste disposal facility is not self-evidently a “major national infrastructure” or “a major infrastructure or utility” project. It is a site-specific facility, located on private land. Granted that it is dealing with radioactive waste, there is no statutory presumption that every radioactive-related facility automatically qualifies as “national infrastructure” or a “major infrastructure or utility” under the TCPA, 1976.

We have considered section 20A and section 20B TCPA, 1976. We find that whilst the former stipulates the duty of every Federal and State Government department or agency to consult the NPPC on any development activity that “it proposes” to carry out within the State, the latter stipulates that they are duty bound to refer to the NPPC “on a development proposal”. It is not confined to development proposals by the Federal and State Government departments or agencies at all. Having said that, whilst it may be possible that a privately developed infrastructure with a strategic national impact can come under “a major national infrastructure” or “a major infrastructure or utility”, it is our view that the PDF facility before us does not come within this category. We note that in certain minutes of the meeting, there was an expression of concern about the potential impact on neighbouring states. To our mind, such an expression of opinion, without more, does not by itself convert the PDF facility into “a major national infrastructure”. The words “a major national infrastructure” must be construed contextually and having regard to the legislative purpose. In the context of planning and administrative law, the Court should be cautious not to over-extend the words to unnecessarily constrain decision-making or displace local authority planning authority.

Accordingly, we are not persuaded that the PDF facility in this case can come under the definition of “a major national infrastructure” under section 20B(1)(b)(ii) or “a major infrastructure or utility” under section 22(2A)(b) TCPA 1976.

“toxic waste disposal”

There is also a doubt as to whether the PDF facility falls within the definition of “toxic waste disposal”. The AELA 1984 deals with “radioactive waste” and “radioactive material,” which are expressly defined in the statute. More specifically, the disposal facility for “radioactive waste” is governed by the Atomic Energy Licensing (Radioactive Waste Management) Regulations 2011 (2011 Regulations”). Neither the AELA 1984 nor the 2011 Regulations uses or relies on the concept of “toxic” waste at all in its operative provisions. In other words, under the AELA 1984, waste is regulated because it is “radioactive” and not because it is “toxic”. It is a sui generis risk.

On the other hand, the EQA 1974 refers to “Scheduled Waste”. This is defined to mean “any waste falling within the categories of waste listed in the First Schedule to the Environmental Quality (Schedule Wastes) Regulations 2005” (“the 2005 Regulations”).

The 2005 Regulations specify a list of specific types of waste that are designated as “Schedule Waste”. Quite clearly, the “Scheduled Waste” does not include radioactive waste at all. The First Schedule is an exhaustive list. In fact, the DOE had, by way of its letter to the 1st Respondent dated 28.10.2022, confirmed the WLP as radioactive waste and not a toxic waste: “3. Berdasarkan Akta Kualiti Alam Sekeliling 1974 dan Peraturan-Peraturan Kualiti Alam Sekeliling (Buangan Terjadual) 2005, sisa WLP tidak dikategorikan sebagai buangan terjadual. Sebaliknya, berdasarkan tahap bahan radioaktif yang terdapat di dalam sisa WLP, ia telah dikategorikan sebagai sisa radioaktif selaras dengan Akta Perlesenan Tenaga Atom 1984 serta peraturan-peraturan berkaitan di bawahnya.” [emphasis added]

To our mind the exclusion of radioactive waste from the First Schedule of 2005 Regulations is not accidental. Parliament has adopted a dual regime structure, that is, all chemical and industrial hazardous waste is to be governed by the EQA 1974 and radioactive waste by AELA 1984. The former to be under the supervision of the DOE and the latter the AELB, being a specialist body.

The aforesaid would explain why the NPPC was informed, during the “Mesyuarat Jawatankuasa Kerja Majlis Perancangan Fizikal Negara (MPFN) Bil. 2/2021” held on 1.6.2021 that the advice of the NPCC may not be necessary because the PDF is built for the dedicated use of the 4th Respondent to store WLP which is not a “toxic waste”: “… c) Akan menyemak kembali keperluan untuk diangkat ke Majlis Perancangan Fizikal Negara di bawah seksyen 20B Akta Perancangan Bandar dan Desa 1976 [Akta 172] kerana pembangunan kemudahan pelupusan kekal (PDF) simpanan sisa water leached purification (WLP) ini bukan merupakan sisa toksid.” [emphasis added]

Further, at a meeting held on 14.6.2021 in the presence of forty-three (43) different individuals across various different government agencies and/or departments, the Jawatankuasa Pemilihan Tapak Baharu had taken into consideration, amongst others, the fact that the WLP is a “radioactive waste”: “Perbincangan dan Asas Pertimbangan

Jawatankuasa Teknikal Pemilihan Tapak Bahru telah mengambilmaklum perkara-perkara yang dibangkitkan seperti berikut: … viii. Di bawah Akta 304, sisa WLP dikategorikan sebagai sisa radioaktif iaitu tahap Uranium dan Thorium melebihi 1 Bq/g. sisa ini tiada bau dan tiada warna. ix. Memandangkan sisa WLP adalah sisa radioaktif, ianya adalah bahan radiotoksik dan bukan kimia toksik.…” [emphasis added]

In our view, the determination of the question whether “toxic waste disposal” under the TCPA 1976 includes radioactive waste, the Court must be mindful that the TCPA 1976 is a statute concerned with planning law and not technical radiological science dealing with issues relating to radioactive dose, decay chains, design and capacity for containing radioactive materials. These require specialist and scientific knowledge, which the planning authorities do not possess. During oral submission, the topic of “low-level radioactive waste” was brought to light. It seems that not all radioactive waste is “toxic”. If, as contended by the Appellant, “toxic waste disposal” includes radioactive waste, it would require the planning authorities to second-guess radioactive risks without the necessary expertise. Planning law will be subject to case- to-case scientific toxicity exercise. It will also undermine AELB’s exclusivity. But more importantly, we are of the view that the words “toxic waste disposal” in planning law must derives its meaning from the EQA 1974 and its “Scheduled Waste” framework and not the AELA 1984. Planning law relies on categorical certainty and not scientific gradation.

We find some support for the above from section 20B(2), which provides that the Federal and State Government shall, for the purpose of seeking advice from NPPC, “… submit the development proposal together with the social impact assessment report and other reports as determined by the Council”. This strongly indicates that the referral mechanism is structured around the assessment of environmental impacts within the EQA 1974 framework, which applies the “Scheduled Waste”. The textual requirement to submit the EIA report reinforces our view that “toxic waste disposal” under section 20B(1)(b)(i) does not include radioactive waste.

Accordingly, although radioactive waste may be harmful, it is not “toxic waste” under the TCPA 1976. Parliament has deliberately regulated radioactive hazards through the AELA 1984 and entrusted their control to the AELB. Instead, section 20B TCPA 1976 operates on defined planning categories as provided under the EQA 1974 and the 2005 Regulations. It is our judgment that when Parliament used “toxic waste disposal” in the TCPA 1976, it did so against the background of the EQA 1974 regime. This is because at the time when section 20B was inserted, radioactive waste was already fully and separately regulated under the AELA 1984. If Parliament had intended to include radioactive waste as a consideration in the TCPA 1974, it could have easily and clearly done so. Is Section 22(4) TCPA 1976 contravened

Section 22(4) TCPA 1976 stipulates: “(4) The local planning authority shall not grant planning permission if—

the development in respect of which the permission is applied for would contravene any provision of the development plan; (aa) the development in respect of which the permission is applied for would contravene the provision of paragraph

(2)(aa); or

the Applicant for planning permission has neither paid the development charge payable in respect of the development nor obtained the permission of the local planning authority under subsection 34(1) to pay the development charge by instalments.”

Section 2 of the TCPA 1976 defines “development plan” as follows: “"development plan", in relation to an area, means-

the local plan for the area; or

if there is no local plan for the area, the structure plan for the area;”

The Appellant contends that the planning approval is in violation of the Kuantan District Local Plan 2035 (Replacement) (“KDLP 2035”) under section 22(4) of the TCPA 1976, which only allows “production and processing activities” and not a “permanent toxic waste disposal” which it is contended, involves different and distinct hazard considerations.

On this point, we agree with learned counsel for the 3rd Respondent that the Planning Permission is in full compliance with section 22(4)(a) TCPA 1976 in that it is wholly consonant with the KDLP 2035.

Although the PDF was initially scheduled to be constructed at a site in Bukit Ketam, Pahang, the site has subsequently been relocated to an alternative site in Gebeng, Pahang, which sits within the industrial land use zone, which specifically permits the proposed activities pursuant to the land use zoning under the KDLP 2035: “2.2.9 Volume 1 of the Kuantan Local Plan 2035: “Daerah Kuantan mempunyai lima

Kawasan perindustrian utama yang telah diwartakan sebagai zon perindustrian iaitu Kawasan Perindustrian Gebeng, Kawasan Perindustrian Tanjung Gelang dan Pelabuhan Kuantan, Kawasan Perindustrian Semambu, Kawasan Perindustrian Indera Mahkota dan Kawasan Industri Prima Kota di Bandar Kuantan.” [emphasis added]

The KDLP 2035 has classified the particulars of permitted land uses to include the production of radioactive materials (in this case the WLP residue), the processing of nuclear waste materials or the production of nuclear components, the processing of toxic waste materials and hazardous residues, and “other related activities” approved by the State and Local Authorities: “Table 1.1 Volume 2 Kuantan Local Plan 2035: C3: Industri Berat Penghasilan Bahan Radioaktif, Memproses Bahan Buangan Nuklear atau Penghasilan Komponen Nuklear Memproses Bahan Buangan Toksik dan Sisa Berbahaya Lain-lain yang Berkaitan (mengikut kelulusan Pihak Berkuasa Negeri dan Pihak Berkuasa Tempatan)” [emphasis added]

In this regard, we are of the view that the “production and processing” of radioactive materials, which are permissible activities under the category of “Heavy Industries” must necessarily include the storage of its by-product (i.e. radioactive waste), and therefore the planning approval of the PDF facility within the Gebeng Industrial Zone is not in contravention of the KDLP 2035 at all. In fact, even before the development of the PDF at the Land, the 4th Respondent had been storing the WLP waste at its land.

In any case, it is also clear from Table 1.1 of the KDLP 2035 that the state authorities, namely the 1st and 2nd Respondents, may approve other related activities within the Gebeng Industrial Zone under “Lain-lain Berkaitan” in Table 1.1. In this case, this Court must assume that the 1st and 2nd Respondents had, in the exercise of their planning judgement, determined that the storage of the 4th Respondent’s by-product radioactive waste was intrinsically related to their production and processing activities and is consistent with the land use zone and land use class.

Accordingly, even if the JR Application has been filed within time, for the reasons above, we are also moved to dismiss the appeal.

In any case, assuming that the Appellant has made out a case under sections 20B(1)(b)(ii), 22(2A)(b) and section 22(4)(a) of the TCPA 1976 (which is not the case), we are also not minded to set aside the Planning Permission. Judicial review relief is discretionary, even in cases of jurisdictional error. The law recognises that not every unlawful decision must be set aside, particularly where countervailing public interest factors are overwhelming.

In this regard, we are unanimous in our decision that, based on the circumstances of this case, any declaration of illegality in the Planning Permission would be academic, create regulatory uncertainty, and serve no remedial or protective function. The Court must ask what useful purpose the relief would serve? At this stage, the PDF facility is completed and fully operational, and the safety, environmental, and radiological compliance has been affirmed with no further statutory challenge.

Even assuming arguendo that the Court is persuaded that NPPC referral ought to have been made, we take cognizance that the regulatory bodies, EIA and AELB, had already approved the construction of the PDF facility with no compelling evidence of any illegality, irrationality, or unreasonableness in their respective decisions. The Appellant is seeking to quash the planning approval and to obtain a declaration that the PDF facility, which is wholly completed and operational, is an illegal structure, merely pinning on the failure to refer to the NPPC without any evidence of weight or substance that there are any health and environmental risks caused by the disposal site. The application comes across as a revived challenge based on a procedural omission of a referral that itself may not even be necessary in this case.

The Appellant relies on Bailey v Kilvanane Wind Farm, Ltd [2016] IECA 92, where the Irish Court of Appeal had no hesitation in ordering the dismantling of 3 turbines, notwithstanding that the turbines had been fully constructed and operational and that the dismantling would result in serious economic and cost implications. However, the facts in that case are very different from our present case. In Bailey, the turbines were constructed illegally, and their development had contravened and deviated from the planning permission. The same is not true in the development of the PDF at all.

In the premises, the appeal is dismissed with costs fixed at RM25,000.00 to be paid to each Respondents subject to allocator. Date: 9th March 2026 -sgd-ONG CHEE KWAN JUDGE COURT OF APPEAL For the Appellant : 1. M. Thayalan;

Meenakshi Raman;

Theivanai Amarthalingam; and

A. Lalith Kumar (Messrs Theiva Lingam) For the 1st Respondent : 1. Munirah binti Shamsudin @

Siti Sarah binti Samsuddin Shah (Pejabat Penasihat Undang-Undang Negeri Pahang For the 2nd Respondent : Rosnah binti Faisal (Messrs Rosnah Faisal & Associates) Fort the 3rd Respondent : 1. Thangaraj Balasundram; and

Nadeem Rafiq (Messrs Thangaraj & Associates) For the 4th Respondent/Interverner : 1. Tan Sri Dato’ Cecil

Dato’ Sunil Abraham;

Noor Muzalifah Shabudin;

Mohd Irwan Ismail; and

Nur Fatin Farrisya binti Mohammad Noor (Messrs Cecil Abraham &