LAW 763

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On Saturday (Oct 21, 2017), 11 workers were killed at the Tanjung Bungah construction site
when thousands of tons of laterite earth slid down from a cut slope about 10m high.
Hence, Majlis Bandaraya Pulau Pinang (MBPP) issued a stop-work order on the construction site
until the search and rescue is completed.

The state government and the local planning authority has been blamed for the tragedy. This is
due to a reason that all developments require planning permission from the local planning
authority. Land use planning is useful to control, regulate and co-ordinate land usage and
development in the area. It the case of hill slope development, land use planning manages risks
arising from landslides when specific design and technologies are imposed on the project
proponent. Hill slope development in Malaysia is regulated at the local planning authority level
through the One Stop Centre (OSC). The development can be controlled by the local planning
authority through the implementation of development plan which consists of the national
physical plan (NPP), structure plan, local plan and special area plan. The plan acts as a tool to
guide local planning authority in deciding whether approval can be granted to the proposed
development.

With reference to the newspaper reports (as attached in the appendix), analyse the case of
landslide in Tanjung Bungah project from all perspective of property development law covering
the aspect of Land Law, Planning Law, Environmental Law, Administrative Law and
Constitutional Law. Aspect of integrity and safety in the construction site should also be
highlighted.

Support your answer with relevant cases and provisions from relevant legislations.
APPENDIX

After fatal landslide, Penang admits DoE did not approve Tanjung Bungah project

by Opalyn Mok

Monday October 23, 2017

GEORGE TOWN, Oct 23 — The Penang government admitted today that the Department of
Environment (DoE) had previously objected to the development of a highrise housing project at
a hill slope in Tanjung Bungah here where a landslide last Saturday killed 11 construction
workers.

State executive councillor Chow Kon Yeow also said that while DoE may not agree to the
project, the Penang Island City Council’s (MBPP) One Stop Centre (OSC) committee was
considering the views of over 20 other agencies, including one that had granted approval.

“The OSC had to consider views from 24 agencies, not only from one agency, even though one
or two agency have different views, the Mineral and Geoscience Department approved this
project,” he told a news conference at Komtar here.

He pointed out that the Mineral and Geoscience Department deals with hill slope stability.

When asked why the local authority still approved the project despite objections from DoE,
Chow said the OSC committee made the decision based on DoE’s support for two other projects
in the same vicinity.

At the same news conference, MBPP Mayor Datuk Maimunah Sharif said two other projects,
one which is a triple-storey terrace houses project and another, the Tunku Abdul Rahman
College, were located nearer to the quarry site mentioned by DoE.

“These two other projects are less than 350m from the quarry site while this project is more
than 350m away from the quarry site, which is in accordance with our guidelines,” she said of
the 49-storey affordable housing project whose workers were killed in the landslide.

Chow stressed that the guidelines for approval of projects near quarry sites was to be at least
350m from the quarry and pointed out that the highrise construction site was 500m from the
quarry.
“The exact distance of this site is more than 350m from the blasting site, it is moving away from
the site, not nearer,” he later clarified.

He also said that conclusions that the landslide was due to the distance from a quarry can’t be
merely made based on DoE’s views.

“We can’t make conclusions based on DoE’s statement,” he said.

Maimunah and Chow both insisted that the incident was a “work site accident”.

“Based on MBPP’s early observations, we suspect there was negligence in the management of
the work site,” Maimunah said.

She said the project is still under construction and as such, the project consultant is responsible
for safety at the site as well as its workers by ensuring construction works were in accordance
with guidelines approved by the council and technical department.

Chow said the MBPP has been ordered to lodge a police report on the incident on the basis that
there is a possibility of professional negligence involved in the site.

“The purpose of the police report is to enable the police to conduct an investigation on the
work site accident and to charge whichever parties found to be negligent that had caused the
death of 11 workers,” he said.

When asked if the meeting minutes of the OSC will be declassified, Maimunah said they will
declassify it.

Planning permission for 49-storey affordable housing building was approved by the OSC on
February 18, 2015.

The building plan for the project was submitted on April in 2015 and it was subsequently
approved on May 2015.

Commencement of work was approved on January 18, 2016.

Maimunah claimed that the construction site was zoned as a general housing zone.

On Saturday, a landslide occurred at the construction site in Lembah Permai, Tanjung Bungah,
killing 11 workers.

Non-governmental organisations and environmental groups have voiced concerns against the
project even before the project commenced.
Penang landslide: Zairil fires back at critics

October 25, 2017

PETALING JAYA: Bukit Bendera MP Zairil Khir Johari today lashed out at critics of the Penang
government that has come under heavy fire over the landslide at a construction site in Tanjung
Bungah on Saturday.

Zairil, who is MP for the area, said the emotion and anger over the tragedy, which claimed the
lives of 11 workers including the Malaysian site supervisor, was understandable.

However, he slammed those who made “irresponsible accusations” against the Penang
government, which he said were based on “deliberate misinformation and a politically
motivated statement by the natural resources and environment ministry questioning the
approval process of the development”.

In a statement, the Penang DAP vice-chairman said the state government had always followed
correct procedures when reviewing planning applications for development projects.

According to him, the proposal for the Tanjung Bungah development project was first
submitted to the city council in November 2014. After a thorough review process, he said, a
commencement of work order was issued in January 2016.

Zairil said the council had approved the project after taking into account the views of 17
different technical departments, most of which were federal government agencies.

These included the Department of Minerals and Geoscience, the primary agency responsible for
mining activities, including quarrying, and slope safety, that came under the purview of the
natural resources and environment ministry itself.

The Department of Environment (DoE) was the only one out of 17 departments that did not
agree to the development.

According to Zairil, in the DoE’s official reply, it said its objection was based on the site’s
proximity to a nearby granite quarry. The reply however made no mention whatsoever of hill
slopes.

He said the city council had taken note of the DoE’s objection, but had based its approval on
precedence, as the development, at 715 metres away from the blasting site, was not the closest
development to the quarry.
In fact, he said, the Tunku Abdul Rahman College situated right next to the development, was
closer to the blasting site at 589 metres.

Although both were over the 500-metre guideline set by the DoE, Zairil pointed out that the
development of the college was approved by both the previous state government and the DoE.

“Clearly, the DoE is inconsistent and practising double standards,” he added.

To claims that the Penang government approved hill slope developments indiscriminately, he
said this was “far from the truth”.

“In the case of the development in question, the area has been zoned as residential since 1972,
while the quarry has been in operation since the 1960s.

“As the same conditions had existed for decades, there was no justification to accuse the state
of arbitrary decision-making.”

Zairil added that the project involved slopes with a gradient of about 20 degrees, which made it
a Category 2 slope (15 to 25 degrees) according to national guidelines.

The land contour of the project area, meanwhile, varied between 18 metres and 40 metres,
which he said was well within acceptable limits.

“According to the same national guidelines, a Category 2 slope at a 40-metre maximum contour
means that the land is technically classified as low land (tanah rendah) and not hill land (tanah
bukit).

“All accusations to the contrary are therefore misleading.”

Zairil said Penang had stricter hill slope development guidelines than the rest of the country,
adding that the state government did not allow any developments on hill land above 76 metres.

This is in contrast to the national guidelines which set 300 metres as the limit.

On the state government’s response to the tragedy, Zairil said its leaders had been on site
within an hour to assist in securing the area and to help coordinate search and rescue
operations.

Penang Chief Minister Lim Guan Eng himself had visited the site and immediately announced
that an independent state-level Commission of Inquiry would be set up to ensure there was no
cover-up in determining the cause of the incident.
“At the same time, a stop-work order was immediately issued to the developer, while the
professional consultants and contractors involved in the project were blacklisted pending the
outcome of the inquiry.

“In addition, the state government also ordered the city council to lodge a police report seeking
an investigation into the possibility of professional negligence.

“As far as the state government is concerned, those responsible will be ultimately held
accountable.”
Penang Forum: State govt told about landslide cases
Sunday, 22 Oct 2017

GEORGE TOWN: Landslides at hill slope projects in Tanjung Bungah have been highlighted to
the state government since early this year, according to Penang Forum.

Penang Forum member Dr Lim Mah Hui said the first case was highlighted by Penang Hill Watch
(PHW) in January and the second in May.

"Photographs of construction and hill cutting on this site were presented to the state
government to which it responded that the 'earthworks were under monitoring'.

"On the second report, we followed up closely but did not get any response from the state
government," he told a press conference.

A landslide on Saturday buried 11 construction workers at the site of a 50-storey affordable

housing block in Lengkok Lembah Permai, Tanjung Bungah.

Seven bodies have so far been recovered.

Lim said Penang Forum had called on the Penang government to review and stop further hill
slope projects two years ago but the call fell on deaf ears.

"The consequences are painfully evident today after an estimate of perhaps 11 lives could be
lost in this tragedy," he said.

He said in the Safety Guidelines for Hill Slope Development, Chief Minister Lim Guan Eng said
Penang Local Authorities were to strengthen their geotechnical unit, which process and
approve applications for hill site development, followed by strict enforcement.

"The question is what happened then? Did the state and local governments follow through on
their guidelines? Or was there gross negligence?," he said. - Bernama
Tanjung Bungah landslide: Calls for urgent RCI as anger mounts

PETALING JAYA: Public anger is mounting over the deadly landslide which buried over a dozen
workers at a construction site at Tanjung Bungah, Penang on Saturday morning (Oct 21).
Previous warnings to the Penang government over the dangers of over-developing the
hillslopes had fallen on deaf ears.
According to reports, Tanjung Bungah Residents Association (TBRA) chairman Meenakshi
Raman said the state government had brushed aside the comments of civil liberties groups on
the state’s hillslope developments, calling such concerns “irrational”.
“We were called ‘irrational’ by the Penang government when we appealed for hill slope
developments to stop. Who’s irrational now?” she was quoted as saying.
Prior to this, the TBRA had repeatedly petitioned the state government to end said
developments as they caused flash floods in the state.
Along with other residents’ associations during the flash floods in September, they had
collectively appealed to the state government to end all excess developments and hill clearing
in the state.
Standing in solidarity with TBRA and other groups, Sahabat Alam Malaysia (SAM), had also
called on the Penang government to improve existing guidelines when it comes to hill slopes.
According to SAM president S. M Mohamed Idris, the NGO had written to the Penang powers-
that-be “several times” to urge them to stop hillside developments.
They also issued warnings that hill slopes are fragile ecosystems that shouldn’t be interfered
with.
“And now, we are really shocked that the lives of many have been sacrificed. We support
TBRA’s call for an urgent RCI,” he added.
Penang govt to investigate 'work site accident' landslide

NATION

Saturday, 21 Oct 2017

GEORGE TOWN: The incident at the Tanjung Bungah housing project construction site was
caused by a landslide, said Penang Department of Safety and Health (DOSH) director.

"Although it's a construction site accident, it was because of the landslide.

"My officers have been on the ground since morning and we can only do a formal investigation
when all the bodies have been recovered and the site is closed," said Rosdee Yaakob.

Chief Minister Lim Guan Eng, who had visited the site earlier, said a state level investigation
committee would be set up to look into the landslide which has claimed three lives so far.

"We view the loss of lives very seriously and only a thorough state-level inquiry could
determine the cause of the accident," said Lim.

He said the state exco meeting on Wednesday would give the go ahead for the setting up of the
committee.

Lim said since it was a construction site accident, DOSH would also be conducting its own
investigations.

State Fire and Rescue Department has confirmed that 14 victims were buried alive at the
construction site when thousands of tons of laterite earth slid down from a cut slope about
10m high at about 8.30am on Saturday.
 Halt hillslope projects, says Penang Forum

 NATION
 Wednesday, 8 Nov 2017

GEORGE TOWN: Penang Forum has called for a moratorium on all development projects that
involve hill cutting in the state with the new risks posed by climate change.
The forum, which is a coalition of some 20 environmental and civil rights NGOs, said the
authorities should carry out inspection and monitor ongoing hillslope developments to ensure
that safety measures were adequate.
“The scope of development planning should be broadened in the long term to take into account
the full range of factors which are both natural and man-made that lead to landslides and flash
floods,” it said in a statement yesterday.
The forum said the members in the coalition appreciated the prompt and concerted efforts
taken by the state, local and Federal governments in response to the flood crisis and to alleviate
the difficulties faced by flood victims.