Dispute Resolution

Planning Appeal Board

Ainul Jaria Maidin 2

• Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-
sama Serbaguna Sungai Gelugor dengan Tanggungan
[1999] 3 MLJ 1 at p.29
• Sri Ram ACJ observed that the planning applicant had done
none of the three procedures mentioned and said, “we do
not think it ought to be heard to complain now.”
• LPA in dealing with an appeal from an aggrieved applicant
usually refers the appeal letter to the Town Planning
Committee meetings for consideration.
• The dispute may or may not be resolved at this stage.
• However, if the dispute still remains unresolved, the
aggrieved applicant can make an appeal against the decision
of LPA to the Appeal Board.
• Decision of Appeal Board is final and there is no recourse to
appeal to court of law.
• An aggrieved applicant can make an application to seek the
court to exercise its discretionary powers over the
administrative authority and review their decisions.

Ainul Jaria Maidin 3

 Appeal Board
• S 36(1) TCPA 1976 provides for establishment of an
Appeal Board in a State for purposes of hearing
appeals referred by aggrieved applicants who are
dissatisfied with decisions of LPA.

• Appeal Board is an administrative tribunal

• estb by law externally from the judicial system, which
decides on questions of fact and law in determining disputes
between individuals and government departments or
between individuals themselves.
• to check exercise of discretionary powers by local planning
authorities especially in determining an application for
permission to develop.
• functions and responsibilities of local planning authorities
encompass wide socio-economic activities and such powers
can be invariably countered or checked by a right of appeal
to the Appeal Board, which is a means of ensuring
accountability.

Ainul Jaria Maidin 4

• Appeal Board can overturn decision of LPA
• the powers of the Appeal Board is uncontrollable and it is the supreme decision
making body in land planning process.

• Hwa Properties Sdn. Bhd. v Majlis Perbandaran Pulau Pinang Appeal

No.LR/PP/6/93
• applicant applied for planning permission to erect one block of three-storey
apartment in Tanjong Tokong. The Planning and Building Standards
Committee of the Majlis Perbandaran Pulau Pinang gave directions to the
applicant to restrict the development to a two storey building in order for
such building to be compatible with the requirement prescribed in the
Tanjong Tokong draft local plan. The draft local plan restricts the building of
high-rise buildings in the Tanjong Tokong area to prevent loss of amenities,
congestion and result in increase of motor vehicles and noise since the
existing road cannot accommodate increase in the traffic flow, as it is not
possible to further widen the road. Further being an established housing
estate consisting of bungalows, it is preferable to maintain the area to
prevent interference with the continuous enjoyment by the residents. The
applicant appealed against the direction, to the Planning and Building
Standards Committee. The appeal was rejected on ground that proposed
development is not compatible with the draft local plan.

• Applicant appealed to Appeal Board -held that the additional population of

an extra floor could not possibly cause loss of amenities and congestion.

Ainul Jaria Maidin 5

 • Wong Lup Tuck & Ors v Majlis Bandaraya Pulau Pinang
[2016] MLJU 1382, PLANNING APPEAL BOARD (PULAU
PINANG) issues to Appeal Board.
• That the Appeal Board has no power to grant an order of
stay of the implementation of a planning permission; and
secondly, that the Appeal Board, either generally or in some
circumstances, is not entitled to take into account issues of
'public interest' when making a decision (or when making
some types of decision).
• Appeal Board held that there is no principle of law that a
tribunal performing judicial or quasi-judicial function cannot
take into account matters of public interest; more so if it is a
planning appeal board dealing with planning law which is
constantly impregnated with public-interest issues.
• No impediment for Board to take into account matters of
public interest, in its decision-making generally including in
respect of a stay-application.
7/23/2019 Ainul Jaria Maidin 6
• Datastream Corporation v Majlis Perbandaran Pulau Pinang Appeal
No.LR/PP/7/93

• an appeal against decision of Penang Town Council to reject the

application for planning permission by Datastream Corporation to
develop a land in Paya Terubung.
• reason for rejecting appeal was based on ground that proposed
development is hillside land, located within the Interim Zoning Plan.
• Further, Penang Island Structure Plan and the Paya Terubung local
plan clearly provides that that development in that area should not
be permitted. The Appeal Board in allowing the appeal granted the
applicant the permission to develop. This proves that the Appeal
Board has wider powers compared to the local planning authority.
The Board has decided against the development policies outlined in
the structure and local plans.

Ainul Jaria Maidin 7

• Richvale (M) Sdn Bhd v Majlis Perbandaran Pulau Pinang
• Appeal No.LR/PP/8/93

• Appeal Board allowed appeal by applicant seeking to develop hillside

land despite the clear prohibition in the development plans prohibiting
developments in those areas.

• Case demonstrated the discretionary powers of the Appeal Board in

overruling any decision made by the local planning authority.

• Appeal Board demonstrated that they can make a decision

incontravention of the planning policies incorporated in the
development plans. Thus, it is clear that though the power to grant
permission to an application for planning permission is within the
powers of the local planning authority, the discretionary powers of the
Appeal Board is unfettered.

Ainul Jaria Maidin 8

 Powers of Appeal Board
• It is obvious that, whenever a planning application is rejected because
of lack of support from a relevant department, and the planning
applicant then appeals to the appeal board, the mere fact of that lack of
support (without adequate explanation) will of course not per se satisfy
the board that the rejection was right and proper, unless the rationale is
so self-evident that no elaboration is necessary.

• In the vast majority of cases, if and when an appellant manages to raise

a ground of appeal that is prima facie sound and sustainable, it will then
be for the planning authority (the respondent) to satisfy the board that
there is good rationale for the objection raised by the objecting
department (and hence the refusal of planning permission). It is
incumbent on this board to inquire into the reasons for the refusal of a
planning permission, once an appellant has made out a prima facie
case.

7/23/2019 Ainul Jaria Maidin 9

 • Appeal Board will decide based on similar decisions made earlier to ensure equal
treatment to all applicants
• This board does not condone unequal treatment; a principle with which En Mansur in his
usual candidness agrees. If sufficient evidence had been adduced at the hearing that
swiftlet farming ought to be prohibited in kawasan jelapang padi or kawasan warta tali air,
and that this appeal ought to be dismissed, then the board would also have to look into the
earlier approvals bearing similar circumstances, to see if at law it might be proper to direct
the respondent to review or revoke the same, so as to ensure equal treatment. Thankfully,
that journey proved unnecessary to be embarked upon, since the board is not persuaded
that swiftlet farming ought to be absolutely prohibited in areas of padi cultivation
•
• An applicant cannot be prevented from seeking to regularise his undertaking by applying
for the required planning permission. Whether or not planning permission ought to be
granted would be determined by carefully considering all relevant planning matters in
relation to the facts and circumstances of a particular case. An applicant’s breach (in
operating before obtaining permission) will not per se disqualify him from applying for and
(where appropriate) obtaining a planning permission; although there may be cases where
the fact of that breach could properly become one of the factors to be taken into
consideration by the planning authority when deciding on the application.
•

7/23/2019 Ainul Jaria Maidin 10

 • Majlis Perbandaran Pulau Pinang v Syarikat
Bekerjasama-Sama Serbaguna Sungai Gelugor
Dengan Tanggungan [1999] 3 MLJ 1 at p 55;
[1999] 3 CLJ 65 at p 113,
• Federal Court in that case had ruled that it would
be an unreasonable exercise of discretion if a
discretion is exercised in a way that infringes the
‘principles governing the exercise of power in a
constitutional democracy’, including ‘the principle
of equality (which requires decisions to be
consistently applied and prohibits the making of
unjustifiable distinctions between individuals)’.

7/23/2019 Ainul Jaria Maidin 11

 Exclusion of Appeal to Court

• An order made by Appeal Board on an

appeal before it, is final and cannot be
called into question in any court, and is
binding on all parties to the appeal or
involved in the matter.
• This means that there is no right of
appeal against the decision of the Appeal
Board.

Ainul Jaria Maidin 12

• The word ‘final’ or ‘final and conclusive’ in s
35(13) TCPA 1976 has been widely considered
by the courts.
• It has been uniformly held that they preclude
any appeal to a court of law.
• statutory provisions are designed to protect
administrative orders and determinations
against judicial review by describing them as
final or by providing that no appeal or review
will lie against the decision must be construed
restrictively so as not to deprive the courts of
their supervisory jurisdiction.
•

Ainul Jaria Maidin 13

• Court is entitled to review the decision on traditional grounds
upon which an application for judicial review may be made.

• If purported decision is ultra vires because decision maker did

not have jurisdiction to make a decision, or because he
misconstrued his powers, or because he acted in bad faith or
contrary to the requirements of natural justice or because he
took into account irrelevant matters or failed to consider
relevant matters, then there is no ‘decision’ to which statutory
exclusion can apply.

• R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574;

[1957] 1 All ER 796, CA (Eng); Anisminic Ltd v Foreign
Compensation Commission [1969] 2 AC 147; [1969] 1 All ER
208, HL.

Ainul Jaria Maidin 14

South East Asia Fire Bricks Sdn Bhd v Non-Metallic
Mineral Products Manufacturers Employees Union
[1980] 2 MLJ 165, PC(“Fire Bricks case”) Privy
Council citing Anisminic Ltd. v Foreign
Compensation Commission, [1969] 2 AC 147; [1969]
1 All ER 208; (“Anisminic case”) stated that,

if the inferior tribunal has merely made an error of

law which does not affect its’ jurisdiction, and if its
decision is not a nullity for some reason such as
breach of the rules of natural justice, then the
ouster clause will be effective.

Ainul Jaria Maidin 15

• Zain Azahari Bin Zainal Abidin v Datuk Bandar Kuala Lumpur, [1995] 2
CLJ 478 the court agreed that it is the function of the local planning
authority, and not the court, to determine the planning of the city of
Kuala Lumpur because they are best suited to carry out this task.
• It is the planning authority who should decide whether a planning
approval should be granted or refused, as the planning authority has
access to the information and material relevant to the decision
making process.

• This affirms the fact that the court is not willing to disturb planning
authorities’ in matters related to planning applications.

• Appeals to Appeal Board is restricted to the planning applicants, local

planning authorities and adjoining neighbours who has made an
objection pursuant to section 21(6) of the TCPA 1976.

• This means other interested citizens and public interest groups are
not able to seek relief from the Appeal Board.

Ainul Jaria Maidin 16

• TCPA vests wide discretionary powers on planning authorities to
ensure smooth administration.
• Concept of administrative discretion involves a right to choose
between more than one possible course of action upon which there
is room for reasonable persons to hold differing views as to which act
is to be performed in a given situation.

• Discretionary powers are also usually worded in very broad language

without any substantive or procedural safeguards. This leaves the
administrators with wide choices.
• Jain M.P., “too broad a discretion has its own dangers and pitfalls.”

• Need to control such discretionary powers for the purposes of

ensuring that planning authorities exercise their powers prudently.
• Judicial review is a procedure that enables the High Court to control
the exercise of discretionary power by the public administrative
bodies.

• Powers of Malaysian High Court to entertain applications to review

decisions of administrative authorities is derived from provision of
section 25(2) and Schedule of Courts of Judicature Act 1964.

Ainul Jaria Maidin 17

• judicial review is very essential in order to curb the
wide powers vested by TCPA 1976 on planning
authorities.
• Courts are often reluctant to interfere with exercise of
powers by the public administrative authorities to
observe the doctrine of separation of powers
between the executive and the judiciary.
• However, this will not deter the court form ensuring
that the administrative authorities will not breach the
basic principles of rules of law.

Ainul Jaria Maidin 18

• There must be limits on every discretionary power.

• Associated Provincial Picture Houses Ltd. v

Wednesbury Corporation [1948] 1 KB 223 House of
Lords - court can intervene in the administrative
decision making process on the grounds of irrelevant
consideration, unreasonableness, irrationality and
unfairness.

• Discretionary powers of the planning authorities are

not unlimited as they can be made subject to
scrutiny by the court of law despite the existence of
the doctrine of separation of powers. Judicial review
is important to ensure that there exist forums in
which the planning authorities can be called to
justify their actions. This ensures accountability on
the part of the planning authorities and they will
exercise their discretionary power prudently.
Ainul Jaria Maidin 19
“Every legal power must have legal limits, otherwise there is
dictatorship. In particular, it is a stringent requirement that a
discretion should be exercised for a proper purpose, and that it
should not be exercised unreasonably. In other words, every
discretion cannot be free from legal restraint; where it is wrongly
exercised, it becomes the duty of the courts to intervene. The courts
are the only defence of the liberty of the subject against
departmental aggression. In these days when government
departments and public authorities have such great powers and
influence, this is a most important safeguard for the ordinary citizen:
so that the courts can see that these great powers and influence are
exercised in accordance with law”, per Raja Azlan Shah Acting C.J.
Malaya
PENGARAH TANAH DAN GALIAN, WILAYAH PERSEKUTUAN V SRI
LEMPAH ENTERPRISE SDN. BHD. [ 1979 ]1 MLJ 135

Ainul Jaria Maidin 20

 • Professor HWR Wade Administrative Law (6th Edn) p 388 (Discretion
Limited by Law): ‘The first requirement is the recognition that all power
has legal limits.
• The next requirement, no less vital, is that the courts should draw those
limits in a way which strikes the most suitable balance between
executive efficiency and legal protection of the citizen.
• Parliament constantly confers upon public authorities powers which on
their face might seem absolute and arbitrary.
• But arbitrary power and unfettered discretion are what the courts refuse
to countenance.
• They have woven a network of restrictive principles which require
statutory powers to be exercised reasonably and in good faith, for proper
purposes only, and in accordance with the spirit as well as the letter of
the empowering Act’.

7/23/2019 Ainul Jaria Maidin 21

• Majlis Perbandaran Pulau Pinang v Syarikat
Bekerjasama-sama Serbaguna Sg Gelugor Dengan
Tanggungan [1999] 3 MLJ 1 FC p.43,
• Federal Court stated that unless there are special
circumstances governing a particular case, notwithstanding a
privative clause, of the ‘not to be challenged, etc’ kind,
judicial review will lie to impeach all errors of law made by
an administrative body or tribunal including inferior courts.

• Court held that it prefers to follow the decision of Lord

Denning in Pearlman v Keepers & Governors of Harrows
School, compared to the Privy Council decision in the Fire
Bricks case, which was argued as not a good law anymore.

• Sri Ram ACJ, ‘to hold it otherwise would mean that a tribunal
could misinterpret the law without worrying about
interference and the tribunal would become the final judge
of the law, thereby in the words of Lord Diplock quoted
above violating the constitutional principle that it is the High
Court which determines the meaning of legislation and not
any other entity.’

Ainul Jaria Maidin 22

• Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-
sama Serbaguna Sg. Gelugor Dengan Tanggungan [1999]
3 MLJ 1 Syarikat Bekerjasama
• Federal Court held that the applicant had the right to seek for
judicial review though there exists a procedure for appeal to the
Appeal Board.

• Despite the limitations in the TCPA excluding the rights of

appeal against the decision of Appeal Board, such
decision can be challenged with a view of quashing it on
the basic principle that Appeal Board has exceed its
jurisdiction by making a decision beyond its purview.
• Court entertains applications for judicial review on the
basic principle that every discretionary power must be
limited.
• Courts have ruled that the finality of decisions by similar
quasi-judicial bodies may still be reviewed by High Court
on the grounds that the Board had made an error,
exceeded its authority or acted outside of the law.

Ainul Jaria Maidin 23

Grounds of judicial review

• JR is a review rather than an appeal

• The traditional groups of judicial review grounds are
• (i) illegality;
• (ii) procedural impropriety and
• (iii) irrationality (per Lord Diplock in the GCHQ case)

• More recently developed grounds are now

• (iv) breach of legitimate expectation;
• (v) mistake of fact;
• (vi) human rights grounds

• Often, grounds will overlap

Ainul Jaria Maidin 24

Illegality (ultra vires)
• acting contrary to statutory provisions
• erring in law and/or misdirecting yourself in law
• exceeding statutory powers
• acting without jurisdiction
• acting for an improper purpose
• improperly fettering a discretion
• unlawfully delegating a function

Ainul Jaria Maidin 25

Procedural impropriety

• Failing to adhere to established procedures (a species of legitimate expectation)

• Failing to adhere to the principles of natural justice: (i) audi alteram partem (the right to know what is
alleged against you and present your version) and (ii) nemo judex in causa sua (the rule against bias)

• Failing to comply with the duty to act in a procedurally fair manner - procedural safeguards which will differ
from case to case: see ex parte Doody [1994] 1 AC 531

Ainul Jaria Maidin 26

Irrationality

• Procedural irrationality: taking irrelevant considerations into account or failing to take relevant
considerations into account

• Substantive irrationality: Also known as Wednesbury unreasonableness – see Associated Provincial Picture
Houses v Wednesbury Corporation [1948] 1 KB 223
• Made out where no reasonable decision-maker could have come to that decision
• A very high threshold

Ainul Jaria Maidin 27

Legitimate expectation

• Established by representation by the public body or, more difficultly, from past or established practice or the
circumstances of the case

• Legitimate expectation may give rise to entitlement to (i) procedural protection before the expected benefit
is denied; or (ii) the substance of the expected benefit

Ainul Jaria Maidin 28

Mistake of fact

• Previously limited review in relation to fact-finding: only where no

factual basis on which decision could be reached

• May now review where mistake as to established and relevant fact

Ainul Jaria Maidin 29

Human Rights

• obligation on public authorities not to act incompatibly with

Convention rights

• Where you are challenging primary legislation the best you can
achieve is a declaration of incompatibility

Ainul Jaria Maidin 30

Proportionality
• The European doctrine of proportionality means that, ‘an official
measure must not have any greater effect on private interests than is
necessary for the attainment of its objective’: Konninlijke Scholton-
Honig v Hoofproduktchap voor Akkerbouwprodukten [1978] ECR
1991, 2003.

Ainul Jaria Maidin 31

• Proportionality is probably not a ground for
review separate from judicial review, but when
a decision is challenged by judicial review the
new approach required under the HRA was
described by Lord Steyn in R (Daly) v The
Secretary of State for the Home Department
[2001] 2 AC 532.
• The court must make a value judgment, an
evaluation, by reference to the circumstances
prevailing at the relevant time

Ainul Jaria Maidin 32

Improper exercise of a power or
discretion includes:
• failing to consider whether or not to exercise a power in
appropriate cases;
• delegation of a power to an inappropriate third party;
• failure to exercise a power or discretion in good faith, or
acting for an improper motive amounting to an abuse of
power or process;
• fettering of discretion, by reference to and application of a
rigidly applied set of rules or criteria;
• exercise of a power or discretion for a purpose other than
that for which it was intended;
• exercise of a discretion in such a way as to frustrate the
policy of the statute that awards the power;
• taking irrelevant factors into account or failing to take
account of all relevant factors.

Ainul Jaria Maidin 33

• De Smith enumerated ways in which power may be
unreasonably exercised or abused:
• Where there is a defect in the decision making process, i.e.
the way the decision was reached or the factors taken into
account in reaching the decision. This covers:
• decisions taken in bad faith;
• irrational decisions, i.e. those which were arbitrary, or
inadequately justified or reasoned;
• decisions where relevant considerations are manifestly in
appropriately balanced.

• Where there is an infringement of principles governing the

exercise of power in a constitutional democracy. These
include:
• the principle of legal certainty (which requires the fulfilment of
legitimate expectations);
• the principle of equality (which requires decisions to be
consistently applied and prohibits the making of unjustifiable
distinctions between individuals).

• Where the impact of the decision is oppressive or an

unnecessarily onerous infringement of a person’s rights or
interests.
Ainul Jaria Maidin 34
 JR Remedies and Procedural Reform

Lord Diplock developed the exclusivity principle because he recognised the special character
of public law remedies.
• Quashing Order/Certiorari has the effect of quashing an ultra vires decision. If the remedy is
granted an ultra vires decision will be rendered VOID.
• Mandatory Order/Mandamus - instructs (mandates) an authority to do its statutory duty,
which may be to exercise its statutory discretion lawfully in the future
• Prohibiting Order /Prohibition - serves to prohibit the authority from acting unlawfully in the
future.
• Declaration - not imposed by the court but states what the legal position is between the
parties. Often sufficient for public bodies who are not prepared to act unlawfully.
• Injunction (equitable remedy) that usually prevents a body from acting.
• Damages only available in limited circumstances in public law.

Ainul Jaria Maidin 35