Planning permission is oftentimes granted with conditions attached. What if the conditions are unfavourable to the developer? Can the developer seek recourse in Court?
That was the question that came up for deliberation by the Court of Appeal in Kerajaan Negeri Selangor & Anor v Berjaya Land Bhd & Ors  1 MLJ 1.
Berjaya Land Bhd (“Berjaya”) intended to develop Berjaya City in Bukit Tagar, Hulu Selangor. Berjaya City was also intended to be the new home for the Selangor Turf Club and its Equestrian and Sports Centre (“Turf Club”).
However, the authorities accepted the concept plan on the condition that there would be no horse racing activities permitted to be carried out. Berjaya was asked to re-submit its amended concept plan for approval.
In the meantime, the Selangor State Executive Council made a decision that the plan to incorporate the Turf Club into Berjaya City could be re-considered at a later date after the industrial and business phases were developed. On the understanding that the State EXCO would re-consider the inclusion of the Turf Club, Berjaya proceeded to develop the industrial and business phases of Berjaya City over the next three years.
Nevertheless, the State EXCO did not decide to allow the Turf Club to be developed. Even the intervention of the Sultan of Selangor could not help Berjaya make any headway. Disgruntled, Berjaya then decided to apply for judicial review of the State EXCO’s non-decision to allow the development of the Turf Club.
When the authorities imposed the condition that there ought not be a Turf Club at Berjaya City and instructed Berjaya to re-submit an amended concept plan, Berjaya ought to have either appealed that decision pursuant to the provisions of the Town and Country Planning Act 1976. Until and unless Berjaya exhausted all available remedies under the law, there was no “decision” which could be subject to any judicial review.
Instead of appealing the decision, Berjaya chose to ignore the direction to re-submit the concept plan. The failure to re-submit the concept plan has the effect as if the application for planning permission had been withdrawn. Without a pending planning permission, the authorities could not be said to be failing to make a decision and there was no decision of the authorities’ to be reviewed by the courts.
The court will not substitute its own decision for that of the authorities’ because the court cannot circumvent the many guidelines and procedures of the Town and Country Planning Act in approving planning permission for any intended project.
Whilst there are always extra-legal measures in seeking for planning permission or other approval from the authorities, it is imperative that parties nevertheless comply with the strict statutory and legal requirements in order not to be disqualified from disputing any decision or lack therefore eventually in a court of law.
Written by: Chan Kheng Hoe ([email protected])