Paying the price for by-passing guidelines

There are many laws and guidelines to control over-development especially on hillsides but exceptions such as ‘special projects’ enable the laws to be side-stepped.

AS efforts to clean up Penang after the devastating floods of last week continue, public discussions on what caused the floods and what measures and policies are to be put in place, are growing.

We have certainly not seen the last of the floods. Many people are worried about what will happen to their home and neighbourhood the next time it rains.

We can mitigate the effects of the floods. And while we cannot prevent rain, we can prevent floods and reduce their damage.

There is a debate raging on whether the most recent floods were an act of nature or man-made.

The answer must of course be “both.” The tropical storm that hit Penang combined long heavy rainfall with wild winds and high tides. But the damaging effects of that storm are partly caused by over-development, especially on the hillsides.

How else to explain the tonnes of orange mud that accompanied the flood waters as they overflowed from the rivers and drains onto roads and homes?

While soil erosion is not all caused by development, a lot of it is. A good question is whether there are laws in place that the authorities can use to control development, especially on hillslopes.

A comprehensive analysis on laws and enforcement has been done by senior Penang lawyer Datuk Agatha Foo, who is respected for her knowledge on legal aspects of hill development.

As she points out, there is already a set of laws and guidelines, but there are loopholes that make the laws easy to sidestep and hinder their use as policy tools.

The Penang state policy is to prohibit development on hill land above 250ft (76.2m), or with hillslopes above an angle of 25˚ (even if under 250ft).

However, the loopholes mean that development, especially of housing, is taking place even on land above 250ft or 25˚ gradient.

The weak enforcement and small penalties seldom act as a deterrent.

Speaking at the Penang Forum event on floods last month, Foo said there are two main actions to be taken:

> Prohibit development on ecologically sensitive hill land (above 250ft) and hillslopes (above 25˚), except for essential public services.

> Strict enforcement of the law and guidelines.

To facilitate the first action, she listed five existing laws/guidelines: the Land Conservation Act; Planning and Development Control Policy Plan (Pelan Dasar), Penang Structure Plan 2020, Guidelines for Special Projects 2009 and the Local Plans for Penang island.

The Land Conservation Act enables the government to gazette hill lands on which development is forbidden or controlled. However, Foo pointed out that some gazetted hill lands above 250ft in Penang were removed from this Act, and rezoned for housing development.

This does not meet the public demand (as listed by almost 30 residents’ associations in Penang) to prohibit all development on hill lands, except for essential public services.

Foo said that action is needed to gazette all hill land under this Act, and to stop approval for excision of gazetted hill land, except for essential public services.

Similarly, under the Pelan Dasar, some hill land above 250ft were zoned for “housing.” There is a need to rezone land above 250ft from housing back to hill land, said Foo.

She also pointed out that the Penang Structure Plan 2020, which was gazetted in 2007 and is legally binding, prohibits development on gazetted hill land, any land that is 250ft and above, and hillslopes above a 25˚ angle.

There is an exception, which is “limited development for special projects.” Under this exception, development has been approved and is taking place.

Foo listed the actions needed: preserve hill area 250ft and above; gazette all ecologically sensitive hill areas as “hill land”; prohibit development on hill land above 250ft and 25˚; and restrict “special projects” to those for essential public services only.

She called for a redefinition of “limited development for special projects” under the guidelines for special projects 2009, which is very wide and ambiguous – they should be restricted only to essential public services.

Foo showed a table with 55 blocks of high-rise housing in Penang on hill land of 250ft and above and/or on slopes steeper than 25˚, that were approved between 2008 and 2015. Many blocks are above 30 storeys, three blocks were as high as 41-45 storeys, and the total number of units was 10,357.

These blocks, mostly condomini- ums and some hotels, were considered as “special projects”, added Foo. The data in the table came from a reply by state executive councillor Chow Kon Yeow to a question on approvals for hill land building projects in 2008-2015 at the Penang State Assembly in November 2015.

Foo’s explanation of the use of the “special projects” exception in the Structure Plan could also explain why the state government leaders insist that the state does not approve projects on hill land above 250ft, while in fact many projects have been taking place as they are given dispensation under the “special projects” provision and the newly designated areas are excised as hill lands and no longer considered such.

Unfortunately, the environment follows its own rules and the project areas are still subjected to soil erosion, slope failure, landslides and mud flows that are terrifying to the hapless residents in the vicinity. We can create loopholes and exceptions in man-made laws to get around the law’s objectives, but nature does not recognise these loopholes.

On the Penang Island Local Plan, Foo said that a draft was approved by the island’s Municipal Council in 2009 but it has yet to be approved by the State Planning Committee. She urged the state authorities to approve and gazette it.

There should also be strict enforcement of existing laws, Foo added, listing the Street, Drainage and Building Act, the Town and Country Planning Act and the Penang Structure Plan 2020, as well as the Safety Guideline for Hillsite Development 2012.

She pointed out that the penalty for illegal clearing or non-compliance of planning permission was low under the Street, Drainage and Building Act as the maximum fine was only RM50,000 (and RM500 a day if the offence continued). The jail term is five years.

Under the Town and Country Planning Act, the penalty is more severe at RM500,000 fine and the company’s director/officer is deemed guilty unless he proves he has no knowledge and took preventive measures. The maximum jail term is two years.

Participants at the event commented that the penalties were too lenient and that companies that violated the laws should be given jail sentences.

Foo also provided suggestions on how to strengthen the requirements under the Structure Plan and Hillsite Development Guidelines, and a way through the complexities of policies, laws and enforcement.

There are still other legal issues to consider, such as the role of the Environment Quality Act and the Environmental Impact Assessment; the use of the plot ratio (number of units of housing allowed per acre of land) as a policy tool (this ratio has shot up manifold in Penang in recent years); and the issue of whether Tanjung Bungah (the district where the tragic landslide that caused 11 lives took place) is a secondary or primary corridor (each has its own plot ratio requirement) under the Structure Plan.

The discussion in Penang on these issues is of immense relevance to the country as a whole for every state now has to face up to the huge challenges of increased rain, floods and landslides.

It would be good to have these discussions in a dispassionate and objective manner, where partisan politics is put on the backseat.

Nature has to be understood in its own terms, and we have to relate and live in harmony with her. The faster we do that, the more we avoid future damage.