MALAYSIAN VERMICELLI MANUFACTURERS (MELAKA) SDN. BHD.

v
PENDAKWA RAYA [2001] MLJU 359 kiv

PENDOR BIN ANGER (NO. K/P: 7306890) & ORS v KETUA PENGARAH JABATAN
ALAM SEKITAR & ORS [2011] MLJU 1522 kiv

SELANGOR STATE GOVERNMENT & ANOR v KUALA LUMPUR KEPONG BHD

[2017] 3 MLJ 205

MATERIAL FACTS:

The respondent owned two adjoining pieces of land, one of which (‘the scheduled land’) was
held under agricultural title but zoned partly for ‘infrastructure and utilities’ use and partly for
agricultural use. Pursuant to the Rancangan Tempatan Majlis Daerah Kuala Selangor 2025, part
of the scheduled land and the adjoining land was to be zoned for industrial land use. In keeping
with that local authority plan, the state authority compulsorily acquired part of the scheduled
land and the adjoining land under the Land Acquisition Act 1960 (‘the LAA 1960’) for the
purpose of extending an existing landfill. The respondent objected and applied to quash the
acquisition by way of a judicial review application in the High Court. In support of its
application, the respondent contended that:

(a) the state authority had failed to issue Form A as required by s 4 of the LAA 1960;

(b) the purpose for which the scheduled land was acquired contravened the designated zoning of
the land as well as the Environmental Quality Act 1974 (‘the EQA’); and

(c) the decision to acquire the land for a landfill for a period of ten to 15 years was irrational and
unreasonable as, pursuant to s 57 of the LAA 1960, the state authority could have leased the
scheduled land from the applicant rather than compulsorily acquiring it. The High Court rejected
ground (i) but agreed with the other grounds and quashed the acquisition. In the instant appeal
against that decision, the appellants contended that the High Court should not have allowed the
judicial review application because:

(i) the acquisition was properly done in accordance with the LAA 1960 and it was not dependent
on either the zoning of the scheduled land or the EQA; that, in any case, matters concerning the
zoning and environmental quality had been complied with; and
 (ii) s 57 of the LAA 1960 gave the state authority discretion to either lease or compulsorily
acquire any land and the non-invocation of s 57 in the instant case could not be a ground for
quashing the acquisition of the land.

HELD:

Appeal was allowed.The High Court erred in holding that the acquisition of the land was invalid.
The challenge to the acquisition of the scheduled land on the ground of illegality or ‘contrary to
law’ had to be confined to the law as provided under the LAA 1960. In the instant appeal, except
for the ground that the appellants had failed to issue Form A (which ground was rejected by the
High Court), the respondent raised no other ground with regard to the LAA 1960 itself.

RATIO DECIDENDI:

The decision-making for the acquisition of the scheduled land did not suffer from illegality,
irrationality or procedural impropriety which warranted judicial review by the High Court.
Although the landfill would fall under the industrial zone, there was no illegality in the decision
to acquire the scheduled land for the purpose of expanding the landfill, which was already in
existence, and which purpose was in accordance with the Rancangan Tempatan Majlis Daerah
Kuala Selangor 2025. The decision to acquire the scheduled land did not suffer from irrationality
either. It could not be said that the respondents’ decision to acquire the scheduled land was so
outrageous in its defiance of logic or of accepted moral standards that no sensible person who
had applied his mind to the question to be decided would have arrived at the decision.

As for the requirements under the EQA, the court agreed with the appellants that the
requirements would be relevant at the implementation stage whereas the decision to acquire and
the acquisition itself was a policy matter. There was nothing in the LAA 1960 that required
compliance with other laws before the acquisition of the land could be validly done.

Section 57 of the LAA 1960 merely provided the state authority with the discretion or an option
to occupy or use the land without resort to compulsory acquisition. As the discretion or option
lay with the state authority, its failure to invoke that provision in respect of the scheduled land
could not be a ground to quash the acquisition. In any event, s 57 would be applicable for
occupation or usage of land not exceeding three years, whereas in the instant appeal the landfill
would be operational for nine to ten years.

RELEVANT STATUTES:

Environmental Quality Act 1974

34A Report on impact on environment resulting from prescribed activities
(1) …
(2) Any person intending to carry out any of the prescribed activities shall, before any approval
for the carrying out of such activity is granted by the relevant approving authority, submit a
report to the Director General. The report shall be in accordance with the guidelines prescribed
by the Director General and shall contain an assessment of the impact such activity will have or
is likely to have on the environment and the proposed measures that shall be undertaken to
prevent, reduce or control the adverse impact on the environment.
34B Prohibition against placing, deposit, etc, of scheduled wastes
(1) No person shall —

(a) place, deposit or dispose of, or cause or permit to place, deposit or dispose of, except at
prescribed premises only, any scheduled wastes on land or into Malaysian waters;
(b) receives or send, or cause or permit to be received or sent any scheduled wastes in or out
of Malaysia; or
(c) transit or cause or permit the transit of the scheduled wastes,

without any prior written approval of the Director General.

Section 57 of the LAA 1960

[34] Section 57 reads:
57 Temporary occupation or use of the land
Whenever it appears to the state authority that the temporary occupation and use of any land is
needed —

1. for any purpose specified in section 3; or

2. in order to carry out public works on any land,

the state authority may direct the Land Administrator to procure the occupation or use of any
such land for such term as he shall think fit, not exceeding three years from the date of
commencement of such occupation or use, in the manner prescribed by this Part.
TENGGARA GUGUSAN HOLIDAYS SDN BHD v PUBLIC PROSECUTOR [2003] 1
MLJ 508

MATERIAL FACTS:

The appellant was convicted and fine RM20,000 by the sessions court judge for carrying out
construction of coastal resort facilities, a prescribed activity under O 17(a) of the Environmental
Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987, without
submitting an environmental impact assessment report to the Director General of Environmental
Quality and getting his approval thereof as required under s 34A of the Environmental Quality
Act 1974. The appellant appealed against the conviction. Learned counsel for the appellant
argued that the appellant was not liable for the offence as the company was only carrying out the
project on behalf of the owner. The words 'Any person' under s 34A of the Act referred to the
owner and not the appellant. The issue before the court was whether the appellant was rightly
convicted.

HELD:

It was dismissed. The prescribed activity in the present appeal was the construction of more than
80 coastal chalets by the appellant. Section 34A(2) imposes a duty on any person intending to
carry out any of the prescribed activities to submit an EIA report before any approval for the
carrying out of such activities is granted. Unless and until such a report is submitted and
approved by the Director General, no person would be allowed to carry out such activity. It was
the appellant developer and not the owner who carried out the prescribed activity by constructing
the 100 chalets without first submitting the EIA report to and approved by the Director General.
Ownership was not the ingredient of the offence. Thus, the appellant was rightly convicted by the
sessions court.
RELEVANT STATUTE:

Environmental Quality Act 1974

Section 34A(2) of the Act states:

Any person intending to carry out any of the prescribed activities shall, before any approval for
the carrying out of such activity is granted by the relevant approving authority, submit a report
to the Director General. The report shall be in accordance with the guidelines prescribed by the
Director General and shall contain an assessment of the impact such activity will have or is
likely to have on the environment and the proposed measures that shall be undertaken to
prevent, reduce or control the adverse impact on the environment.

Section 34A(6) provides:

Any person intending to carry out a prescribed activity shall not carry out such activity until the
report required under this section to be submitted to the Director General has been submitted
and approved.

s 34A(8) states:

Any person who contravenes this section shall be guilty of an offence and shall be liable to a
fine not exceeding one hundred thousand ringgit or to imprisonment for a period not exceeding
five years or to both and to a further fine of one thousand ringgit for every day that the offence
is continued after a notice by the Director General requiring him to comply with the act
specified therein has been served upon him.

Environmental Quality (Prescribed Activities) (Environmental Impact Assessment)

Order 1987

O 17(a)

RESORT AND RECREATIONAL DEVELOPMENT:

(a) Construction of coastal resort facilities or hotels with more than 80 rooms.
(b) …
(c) …
(d) ….
AWANG @ HARUN BIN ISMAIL & ORS v KERAJAAN NEGERI KEDAH & ORS
[2010] 4 MLJ 83

MATERIAL FACTS:

On or about 16 December 1997, the first defendant had assented to the structure plan for the
District of Yan from 1995–2020 and the same was gazetted on 1 January 1998. According to the
structure plan, the Gunung Jerai Forest Reserve was to preserved as a water catchment forest and
any activity which could destroy the natural environment and affect the supply of clean water
was not allowed. Subsequently, the first defendant granted the approval for a quarry on a 100
acre site in Gunung Jerai and further declared the quarry site as ceasing to be a forest reserve.
The fifth defendant was accordingly given a 30 year lease of the site by the fourth defendant. The
sixth defendant was the quarry operator. The third defendant approved an Environmental Impact
Assessment for the quarry project. In the quarter of 2006, blasting operations began at the quarry
site. The fiffh defendant had not applied for planning permission as was required by s 19 of the
Town and Country Planning Act 1976 ('TCPA'). The above was confirmed by the Legal,
Planning and Monitoring Section of the Town and Country Planning Department, Peninsular
Malaysia. Accordingly, a stop work order was issued by the Yan District Council against the fifth
defendant on 8 March 2006. However, the said stop work order was never enforced by the Yan
District Council. The plaintiffs were all inhabitants of the area covered in the structure plan of
the Yan District Council, which were located within the 1–3km of the quarry. They contended
that they have been adversely affected by the operations of the quarry.

Despite operating in contravention of the TCPA, and without any planning permission, on or
about 19 February 2006, blasting operations then began on the quarry site. The operations carried
on despite the stop work order issued by the Yan District Council on 8 March 2006. Despite the
plaintiffs' appeals, the authorities allowed the quarry to continue its operations. Accordingly, the
plaintiffs filed this originating summons seeking, inter alia, a declaration under O 15 r 16 of the
Rules of the High Court 1980 ('RHC') that the approval of the sixth defendant's quarry project
was null and void. All the defendants then filed applications under O 18 r 19 of the RHC to strike
out the plaintiffs' originating summons. The defendants relied substantially on the following
grounds:

(a) the plaintiffs invoked the wrong procedure in that they should have applied for judicial
review under O 53 and not for a declaration under O 15 r 16; and

(b) the plaintiffs have no locus standi to bring this action as they do not have any legal
proprietary interest in the lands within the vicinity of the quarry.

The High Court after hearing the arguments on the wrong procedure and locus standi, allowed
the applications. Against the said decision, the plaintiff's appeal to the Court of Appeal was
allowed. The defendants applied for leave to the Federal Court. The questions framed, however,
were only centered on striking out and the procedure of O 53 of the RHC. The question of locus
standi was not raised. The Federal Court dismissed the application for leave, and for this reason
the case was returned to the High Court for a hearing of the originating summons on its merits.
The plaintiffs had applied to the court to exercise its discretion under O 33 r 2 of the RHC to
determine the issue of illegality raised by the originating summons. The defendants however,
insisted that the plaintiffs were not entitled to proceed with the substantive issues in their
originating summons until they had proved their locus standi before the court. The plaintiffs
submitted that the issue of locus standi had been raised and considered by the Court of Appeal,
and the matter was res judicata and/or the defendants were stopped from raising the point at this
stage.

HELD:

Plaintiff’s application was allowed. The plaintiffs were not mere busy bodies as contended by the
defendants. They were also not mere public interest or public spirited individuals. Prima facie,
they were persons who have sufficient personal interest in the legality of the impugned action.
They came within the class of persons the structure plan seeks to protect: those who have homes,
orchards or padi fields within the area, those whose source of water are the rivers running in the
area for which the forest represents an important water catchment area. They specifically came
within the class of persons to be protected by the Town and Country Planning Act. The plaintiffs
had also shown some evidence of water from the river Badong and Singkir as being polluted
with suspended solids. The right to a reasonably healthy and pollution free environment and the
right to livelihood (specifically in relation to the second, third, fourth and fifth plaintiffs) were
fundamental constitutional rights .
RATIO DECIDENDI:

The plaintiffs and defendants fully ventilated their arguments on locus standi at the High Court
and the Court of Appeal. The High Court allowed the striking out application by the defendants
on the basis that wrong procedure was used. The Court of Appeal considered the issue of locus
standi and found that it involved factual disputes, which resulted in the matter being unsuitable
for striking out. The Federal Court did not allow the defendant's application for leave, and in any
event, locus was not even stated as a ground for leave, or as a question for the determination of
the court. The abandonment of the locus point by the defendants amounted to an admission of
fact that the plaintiffs do have sufficientThe issue of threshold locus standi having fully
ventilated in the defendants' striking out applications and subsequent appeal, res judicata, or
issue estoppel (which is res judicata in its wider sense) would prevent the defendants from once
again raising the issue of locus standi locus to bring this action. This admission could not be
withdrawn and a contrary position now taken.

The illegality in the present case was clear. Section 22(4) of the TCPA clearly means that no
development should be carried out if it contravenes the structure plan. In the present case, over
and above s 22(4), the structure plan itself was gazetted and thus has the force of law. The
excerpts from the structure plan clearly showed that Gunung Jerai Forest Reserve and Sungai
Singkir was to be maintained. How could the defendants justify the approval, existence and
operation of a quarry on the very site the structure plan stated it to be protected. Having shown a
prima facie case of illegality, the burden in fact shifts to the defendants, at least first to fourth
defendants to show that their actions were legal. Section 19 of the TCPA also clearly states that
no development can proceed without a planning permission and it has been confirmed, not only
that the fifth and sixth defendants failed to apply for one but are now carrying operations in
contravention of the second defendant's stop work order. Based on the aforesaid reasons, the
defendant must be estopped by the principles of res judicata from once again raising the issue of
locus standi in this matter.

RELEVANT STATUTES:

National Forestry Act 1984s 10

National Forestry (Adoption) Enactment 1985s 13(1)(b)

Rules of the High Court 1980O 15 r 16, O 18 r 19, O 33 r 2, O 53

Town and Country Planning Act 1976 ss 9, 9(1)(b), (2), (3), 10(6), (7), 11, 19, 22(4)
Town Boards Enactments 145

ZAKARIA BIN ABDULLAH & ORS v LEMBAGA PERLESENAN TENAGA ATOM &
ORS [2013] 5 MLJ 206

MATERIAL FACTS:

The Atomic Energy Licensing Board ('the first respondent') had granted Lynas Malaysia Sdn
Bhd ('the third respondent') a temporary operating licence ('TOL') to construct the Lynas
advanced materials plant ('LAMP') in a town in Pahang. The LAMP was located between 2km to
20km from the appellants' homes. It was not disputed that the operation of the LAMP involved
the use of radioactive materials and that it would generate radioactive waste. The appellants
applied for a judicial review of the first respondent's decision approving the TOL on the grounds
that the latter's decision was in breach of s 34A of the Environmental Quality Act 1974 ('the
EQA'). It was the appellants' contention that the environmental impact assessment report ('EIA')
had to comply with guidelines prescribed by the Director General of Environment ('DGE'),
namely a detailed EIA process, which is a procedure undertaken for projects with major impact
to the environment and is far more stringent and complex than a preliminary EIA. It was the
appellants' argument that the first respondent could not approve any licence under the Atomic
Energy Licensing Act 1984 ('the AELA') unless the project complied with terms and conditions
of the DGE's approval of the detailed EIA. Since the third respondent only submitted a
preliminary EIA, it was the appellants' case that the first respondent had acted ultra vires the
EQA and consequently ultra vires the AELA. In response the respondents submitted that the EIA
that was submitted by the third respondent was in accordance with what was required at that
point in time by the DGE for the approval of the LAMP. The respondents further submitted that
it was only after the DGE was satisfied that the third respondent had complied with all the
requirements of s 34A of the EQA that the third respondent was granted the TOL for it to carry
out the sitting, construction and operation of the LAMP. The trial judge found that the internal
appeal procedure ought to be exhausted before the appellants were allowed judicial review.
Consequently the application for judicial review was dismissed. This was the appellants' appeal
against that decision. In this appeal the appellants submitted that the trial judge had erred in not
following binding precedents, which had decided that where an applicant sought judicial review
alleging illegality in the decision of the public authority as was the position in the instant case,
there was no need to resort to the internal appeal procedure prescribed in the legislation.

HELD:
Dismissing the appeal with no order as to costs.In cases of a technical nature such as this, leave
for judicial review ought to be granted only in exceptional cases, such as where there was proof
of abuse of power or breach of the rules of natural justice. Since there was no evidence of either,
the trial judge could not be faulted for exercising the discretion in requiring the appellants to
exhaust the internal appeal procedure before resorting to the ordinary courts of law.

RATIO DECIDENDI:
Even if there had been non-compliance of the guidelines prescribed under s 34A(2) of the EQA,
such non-compliance did not in law nullify the report submitted by the third respondent or the
decision of the second respondent as guidelines by the DGE did not have the force of law.
Further, although the approval granted in the present case was by the State Director and not the
DGE, the approval included conditions which required the third respondent to submit further
reports in the future, with some of the reports to be submitted to the DGE himself for his
approval. In other words, the granting of the TOL pursuant to the preliminary EIA did not imply
that the process was not dynamic and not alive to the need for fresh approvals arising from
changes during the implementation stage. Accordingly, since the submission of the preliminary
EIA was pursuant to the order of DGE and the TOL was granted upon the DGE being satisfied
that s 32(2) of the EQA had been complied with, there was no illegality preceding the granting of
the TOL. The internal appeal procedure ought to be exhausted before the appellants should be
allowed judicial review, in view of the fact that the issues involving the approvals granted to the
third respondent were highly technical in nature and concern environmental issues affecting the
health of all the citizens in general and the residents living in the vicinity of the LAMP in
particular. In these circumstances it was reasonable that the appeal procedure which had been
incorporated in the AELA be resorted to, before recourse was had to the ordinary courts of law.
In this respect, the Minister considering this appeal would have the benefit of receiving
professional advice from a team of experts in the various Ministries, as opposed to a judge who
would be primarily concerned with abuse of power by a public authority.

RELEVANT STATUTES:

Atomic Energy Licencing Act 1984s 32

Environmental Quality Act 1974 ss 32(2), 34A, 34A(2)

Federal Constitution arts 5, 8, 13

Radiation Protection (Licensing) Regulations 1988 reg 23

HJ ZAINIE ABDUL AUCASA (SUING ON BEHALF OF THE SABAH WETLAND
CONSERVATION SOCIETY) v YABI YANGKAT (DIRECTOR OF SABAH
ENVIRONMENT PROTECTION DEPARTMENT) [2015] 8 MLJ 101

MATERIAL FACTS:
A property developer proposed to construct a 31-storey condominium on its land in Kota
Kinabalu ('the project'). For the approval of the project's development plan, the City Hall
required the developer to obtain an environment impact assessment ('EIA') approval from the
respondent. Since the proposed development did not fall within 'prescribed activities' as defined
in the First and Second Schedules of the Environment Protection (Prescribed Activities)
(Environment Impact Assessment) Order 2005 ('the Order') enacted under s 12(2) of the
Environment Protection Enactment 2002 ('the Enactment'), no EIA report under s 12 of the
Enactment was necessary. The respondent, however, approved an EIA report for the project
under s 13 of the Enactment which allowed him to require an EIA report or a proposal for
mitigation measures to be submitted by an applicant for any activity not prescribed under s 12 if
he was of the opinion such development activity had or was likely to have an adverse effect on
the environment. The applicant, who was president of the Sabah Wetlands Conservation Society,
contending he was a 'person aggrieved' by the respondent's approval of the EIA report, submitted
an appeal to the respondent under s 47(a) of the Enactment for the matter to be referred to the
Environment Appeal Board ('the board'). The respondent did not forward the applicant's appeal
to the board contending that his approval of the EIA report was made under s 13 of the
Enactment and therefore was not a matter appealable under s 47 of the Enactment. The applicant
filed the instant judicial review application for an order of certiorari to quash the respondent's
decision not to forward his appeal to the board and for an order of mandamus compelling the
respondent to do so. Besides setting out the merits of his appeal, the applicant contended that the
respondent's decision not to forward his appeal to the board denied him of his rights to appeal
and to be heard by the board and was an act of unfair discrimination in violation of art�8(1) of
the Federal Constitution. Section 47 of the Enactment allowed any person aggrieved by any
decision of the respondent under ss 12 or 17 or an abatement notice issued under s 37 of the
Enactment to submit an appeal to the respondent within 30 days of his decision whereupon the
respondent was required to forward the same to the Chairman of the Board.

HELD:
dismissing the application with costs of RM3,000. Since the respondent's decision was made
under s 13 of the Enactment, it was not a decision that was appealable under s 47(a) or (b) or (c)
of the Enactment. The respondent had a legal duty and obligation to ensure that an appeal
satisfied one of the situations in s 47(a), (b) or (c) before it could be forwarded to the Appeal
Board. As the applicant's purported appeal failed to satisfy any of the three situations in s 47, the
respondent's refusal to forward it to the Appeal Board was in compliance with the law. There was
no error in his decision-making process and he had not breached his public duty.

RATIO DECIDENDI:

The proposed development in this case did not fall within the category of 'prescribed activities'
under s 12 of the Enactment. Consequently, the respondent could only consider and approve or
reject an EIA report under s 13 of the Enactment which related to non-prescribed activities. A
decision under s 13 was not subject to appeal under s 47(a) of the Enactment. There was no
issue of unfair discrimination or a violation of art 8(1) of the Federal Constitution. The only
question was whether the provisions of the Enactment and/or the Order were correctly invoked
and construed. The court's function in judicial review was supervisory in nature and it was only
to consider the decision-making process and not whether the decision on the merits of the case
was fair and reasonable unless there was illegality, irrationality or disproportionality none of
which there was evidence of in the present case.

RELEVANT STATUTES:

Environment Protection Enactment 2002 ss 12 , 12(2) , 12F , 13 , 17 , 37 , 46(2) , 47 , 47(a) , (b)

, (c)

Environment Protection (Prescribed Activities) (Environment Impact Assessment) Order 2005

Federal Constitution art 8(1) , First Schedule , Second Schedule, paras 3, 3(i), (ii), (iii), 9, 9(i)(b),
(ii)

Sabah Cultural Heritage (Conservation) 1997 Enactment

Mohamed Taufiq Teng Abdullah & Ors v Menteri Sains, Teknologi dan Inovasi Malaysia
& Anor (Lynas Corp Ltd & Anor, intended interveners) [2014] 9 MLJ 712

MATERIAL FACTS:

The applicants had applied for leave to file for judicial review under O 53 r 3(1) of the Rules of
Court 2012. The applicants sought orders, inter alia, to quash the decision of the respondents in
issuing the temporary operating license ('TOL') in favour of Lynas Advanced Materials Plant
('LAMP'). The proposed interveners applied to intervene and to be added as a party in the
judicial review proceedings. The court had made a decision on the issue of intervention earlier in
related Suits No 25NCVC-17–7 of 2012 and No 25NCVC-18–7 of 2012 ('the earlier suits').

HELD:

allowing the proposed interveners' application with costs in the cause. The intervening
application was indistinguishable and bore a striking resemblance to the earlier suits. Even
counsel appearing for the respective parties were the same counsel in the earlier suits. It was so
parallel and alike that it could very well be combined with the earlier suits and it would not have
made any difference. The court is bound by its own decision. This is to ensure consistency and to
avoid legal pandemonium where the same court of law in determining the very same issue in a
short span of time assisted by the same counsel makes two conflicting decisions .Having made
the decision in allowing the interveners' application in the earlier suits, the court adopted the
same grounds in this action. The proposed interveners were a necessary and proper party who
had a direct interest in the matter and were adversely affected by the decision of this judicial
review proceeding. The inclusion of the proposed interveners as parties was necessary as they
were directly affected by the applicants' application.
RELEVANT STATUTES:

Atomic Energy Licensing Act 1984s 32, 32(5)

Rules of Courts 2012O 15, O 53 r 3(1), 3(5)

Rules of the High Court 1980

RAINBOW BAY SDN BHD v MLGH (SABAH) SDN BHD & ANOR [2021] 10 MLJ 846

MATERIAL FACTS:

The plaintiff was a developer. The first defendant (‘D1’) was an incorporated company limited
by shares wholly owned by the second defendant (‘D2’). The plaintiff and D1 had entered into a
joint venture agreement (‘the JVA’) which was varied and supplemented under a supplemental
agreement (‘the SA’) (‘the JVA/SA’). Pursuant to the JVA/SA, D1 appointed the plaintiff as the
sole and exclusive developer on a turnkey joint-venture basis to develop a mixed development
(‘the project’). The project was to be constructed on approximately 352 acres of state land be
alienated to D1 (‘the land’). The respective undertakings and obligations of both the plaintiff and
D1 were as stated in the JVA/SA. D1 had written to the plaintiff to inform that because of the
economic downturn in the country, the state government had decided that the project would be
deferred for at least three to five years depending on the recovery of the country’s economy. D1
also stated that the state government would have had no objection if the plaintiff wanted to carry
out survey and conduct studies on the environment aspect as well as marketing the project. As
for the environmental impact assessment of the project, after the plaintiff had done much work
and spent considerable time and expense following meetings, studies, and reviews spearheaded
by the plaintiff and its consultants, the Detailed Environmental Impact Assessment Final Report
(‘DEIA Final Report’) was approved with conditions by the Federal Department of Environment.
However, the approved DEIA Final report was rejected by the Director of State Environment
Protection Department (‘SEPD’) ie DW2. The plaintiff challenged the decision under judicial
review to quash the decision by an order of certiorari. The High Court dismissed the plaintiff’s
application with costs. The plaintiff appealed and the Court of Appeal allowed the plaintiff’s
appeal, set aside the High Court order, and directed the Director of SEPD to hear the plaintiff
before he could decide whether to approve or to reject the DEIA Final Report. The plaintiff then
issued a notice of termination (‘NOT’) to D1. D1 responded stating that, among others, because
of the economic downturn, the judicial review proceedings, and the enforcement of the law
barring seafront development in Kota Kinabalu, the land was affected. D1 then offered to
mutually terminate the JVA/SA. Hence this suit against D1 and/or against D2 as the principal
behind D1 for breach of contract and/or repudiation and further or in the alternative the tort of
inducing or procuring the breach of contract against D2 for having directly or indirectly induced
or procured D1 to break the JVA/SA. The issues for consideration were:

(a) whether there was a repudiation of the JVA/SA on the part of the defendants as alleged by the
plaintiff;

(b) whether D2 had induced or procured D1 to break the JVA/SA;

(c) whether there was a justification in repudiation of the contract on grounds of frustration
alleged by the defendants; and (d) whether the plaintiff was entitled to damages.

HELD:

In the upshot the plaintiff has on the balance of probabilities proven its claim against the
defendants on issues (i), (ii) and (iii) but not (iv). I therefore allow damages of RM394,107,866
(Part A and B), interest at the rate of 5%pa from 10 October 2015 until full payment and costs of
RM100,000 subject to allocator fees.
RATIO DECIDENDI:

The defendants had not given any plausible reasons why they did not process the issuance of
the land title to the land. D1 had not only breached the JVA/SA but by its conducts also
amounted to an absolute refusal to perform which would lead a reasonable person to say that
D1 had breached its promise in its entirety. The plaintiff therefore on balance of probabilities
was entitled to terminate the JVA/SA. The defendants had remained silent on the issue of no
bank/corporate guarantee furnished by the plaintiff to D1 when the power of attorney (‘PA’)
was given to the plaintiff. It was now too late for the defendants to raise the plaintiff’s breach
for not furnishing the bank/corporate guarantee. It was unreasonable for D1 to rely on the PA
to escape from its undertaking to get the land title to the land. D1 could not say it no longer had
the obligation to obtain the land title to land just because it had already given the PA to the
plaintiff. In addition, the plaintiff had fulfilled its obligation on having obtained the approved
DEIA Final Report as required under cl 3(c) of the JVA/SA.

D1 understood the contents and the true purport of the NOT that was why it had asked for
mutual termination of the JVA/SA. Issuing the NOT was procedural in nature and if the
defendants felt so strongly on the alleged non-compliance of cl 8 of the JVA/SA for whatsoever
reasons, the defendants could, if it so wished, filed an application to strike out the plaintiff’s
suit. To raise this issue of cl 8 of the JVA/SA now, was too late in the day. The evidence
showed that the plaintiff remained very interested in ready to proceed with the project. The
defendants’ assertion that the plaintiff had lost its interest in the project was without basis. It
was vice versa.

D1 was not prepared or unable to comply with their part of the obligations as stipulated by the
JVA/SA. D2’s conduct in instructing the D1 to reject the DEIA Final Report was not done in
good faith. The so-called purported exercise of discretion to reject the already approved DEIA
Final Report was no exercise of discretion. It was made in bad faith. The rejection amounted to
a repudiation of the JVA/SA entitling the plaintiff to terminate the same. D1 and D2 were both
responsible, by their conducts showed that they had conducted in repudiation of D1’s contract
obligations under the JVA/SA as they evinced a clear intention that they were unwilling, unable
and not ready to perform the entire contract obligations.

D2 had knowledge of the JVA/SA, entered into, between D1 and the plaintiff. Because of D1’s
position, it being a D2’s company and D2 being the state government who had control of state
land, D1 surely was able to have the land title issued within a reasonable time. D2 had used
DW2 to abuse his power to reject the already approved DEIA Final Report. D2 had indirectly
interfered through the unlawful means of the Director of SEPD’s unlawful decision in rejecting
the already approved DEIA Final Report. D1 being wholly owned company of D2 was
prohibited by D2 from performance of its contractual obligations. Having lost of the benefit of
the JVA/SA, the plaintiff was expected to claim substantial damages and it was all due to the
interference of D2. In addition, the defence of justification was not available to the defendants.
The tort of procurement or inducement to breach the contract was complete and all the
elements satisfied when DW2 issued his letter to unlawfully reject the DEIA Final Report.

The Chief Minister of Sabah’s (‘CM’) evidence on the meeting with DW2 on the restricted
letter would have shed light on whether the CM had instructed DW2 to reject the approved
DEIA Final Report because DW2’s evidence was that D2 had changed its mind on proceeding
with the project. Since the defendants did not call the CM and he was around at that time, the
court was entitled to invoke s 114(g) of the Evidence Act 1950 and found that the CM had
instructed DW2 to reject then approved DEIA Final Report. There could be no justification for
DW2 to reject the approved DEIA Final Report. The rejection of the DEIA Final Report as
contended by the defendants was one that they could have prevented but did not and therefore
was fully at fault on its occurrence. The so-called frustration due to the rejection of the
approved DEIA Final report was no frustration but a self-induced frustration. DW2 as the
Director of SEPD had not properly exercise his discretion. On balance of probabilities there
was no justification in repudiation of the contract on grounds of frustration, namely the SEPD’s
rejection of the DEIA Final Report. The alleged frustration was self-induced. The true intent
and purport of s 9A of the Sabah Land Ordinance was to ensure that the project could not
proceed so that the defendants could avail themselves to the defence of frustration to avoid
liability. The defendants’ conduct not paying the balance of the land premium showed that the
defendants were delaying the implementation of the project because without the land title to
the land the plaintiff could not start the project. On a balance of probabilities, the defendants
had not proven frustration; but the plaintiff had proven on balance of probabilities that the
rejection of the approved DEIA Final Report and s 9A of the Sabah Land Ordinance were
self-induced.

The plaintiff could not have expected PW5 was not a registered quantity surveyor after all he
was with Jurukur Bahan LM. The defendants had not been prejudiced as they were allowed to
defer cross examining PW5 until PW6’s expert report was served on defendants’ own expert ie
DW1 and DW1 had the opportunity to study PW6’s expert report and he had prepared a
supplementary expert report to comment on the same. The plaintiff had proven its claim for
damages under Part A and damages of RM387,752,493 was allowed. For damages under Part
B, having read the audited financial statement and the plaintiff’s own ledgers and accounting
records which showed a further breakdown of figures and having read the parties’ respective
submissions, the plaintiff had on a balance of probabilities proven its claim for RM6,355,371
against the defendants. For damages under Part C, the plaintiff had on the balance of
probabilities failed to prove its claim against the defendants. The report was highly remote and
uncertain and hence this part of the plaintiff’s claim was disallowed.

RELEVANT STATUTES:

Chief Minister (Incorporation) Ordinance Cap 23

Civil Law Act 1956 ss 11, 15, 16
Contracts Act 1950 ss 10(1), 40, 47, 55, 57, 57(2), 66, 74(1)
Evidence Act 1950 ss 101, 102, 114(g)
Land Ordinance (Cap 68) ss 9A, 88
Quantity Surveyors Act 1967
Rules of Court 2012 O 34 r 2(2), O 40 r 1(1)

NASIP BIN ROSLAN v DIRECTOR OF PUBLIC WORKS DEPARTMENT & ORS

[2020] MLJU 1253

MATERIAL FACTS:

The said Project was initiated by the 2nd Respondent. One, Pembinaan Azam Sdn. Bhd. was
engaged as the contractor (hereinafter called “the Contractor”) for its construction.

[4] The said Project consists of road upgrading works for construction of a third lane along both
carriageway of Jalan Lintas from Plaza Lintas Intersection to the Petagas flyover covering about
6 km.

[5] It involves the construction of two flyovers, one at Jalan Lintas/Jalan Penampang Bypass
intersection [Penampang Baru intersection (J5)] and the second one at Jalan Lintas/Jalan
Penampang intersection [Lido intersection (J6)].

[6] It also involves a construction of an Elevated U – Turn road (J11) at Lintas Plaza intersection
which is bordering the backyard of the residential lots of Taman Milek Phase 1.
[7] In August, 2016, the Contractor submitted to the Environment Protection Department, an
Environmental Impact Assessment (EIA) Report of August 2016 prepared by its Environmental
Consultant, Ensolve Sdn. Bhd. (hereinafter called “Ensolve”) in respect of the said Project.
Following that, it seems that Ensolve has on behalf of the Contractor, also submitted further EIA
Reports on 6-1-2017 and 29-6-2017.

[8] After receiving notices from the Contractor regarding the construction of the flyovers and
the Elevated U-Turn, seven (7) of the residents of Taman Milek Phase 1 signed a petition dated
18-11-2017 addressed to the Mayor of Dewan Bandaraya Kota Kinabalu, the 2nd Respondent,
the Contractor and Perunding Puncak Anugerah Sdn. Bhd, the Contractor’s civil and structural
consultant.

[9] By their petition, these residents raised their complaints and objections against the building
of the Elevated U-Turn. Their complaints and objections were to the insufficient set-back of the
Elevated U-Turn, on the safety, health and security issues potentially posed to them and the
depreciation of the value of their properties brought about by the construction.

[10] Following that, it seems that the matters were brought to the Sabah State Assembly on
behalf of the residents concerned by their local elected representative who also held meeting with
the representatives from the Contractor and the consultant engineer. They also held press
conference whereby, the Contractor was requested to reconsider the design of the Elevated
U-Turn.

[11] By a letter dated 23-11-2017, the 2nd Respondent approved the EIA Report submitted by
the Contractor in respect of the environmental aspect and which also notified the Contractor that
all the mitigating measures as provided in agreement of environmental conditions for the
approval have to be complied with and implemented. The Contractor was informed to obtain the
necessary approvals from the relevant departments in respect of other technical matters. The
Contractor was also required to take the following actions:
 ● (a).
● to inform when the said Project was going to start works;
● (b).
● to provide a copy of the environmental agreement of environmental conditions to the
Operating Office of the Environment Protection Department;
● (c).
● to co-operate with officers of Environment Protection Department for them to carry
out inspection and monitoring duties;
● (d).
● to hold consultations/dialogues with the local residents to resolve any issues arising
from the said Project;
● (e).
● to hold consultations with Environment Protection Department and/or any relevant
government agencies for purpose of protecting the environment in the surrounding
area of the said Project;
● (f).
● to notify Environment Protection Department of the completion of the said Project;
and
● (g).
● to inform changes in authorised signatories, contact and mailing address, telephone
number or fax number.

[12] On 23-11-2017, the Contractor also executed a letter of undertaking (Surat Akujanji) under
section 12E(1) of the Environment Protection Enactment 2002 to comply with all the terms and
conditions as specified in the Agreement of Environmental Conditions (Perjanjian Syarat-Syarat
Alam Sekitar) dated 2-10-2017 in respect of the said Project as stated in the EIA Reports
submitted by Ensolve by the letters dated 6-1-2017 and 29-6-2017.
[13] On 12-2-2018, it seems that there was some kind of dialogue at the site between the some
of the residents of Taman Milek Phase 1 and the representative of Jabatan Kerja Raya, Sabah
whereby the said residents raised again their objections to Elevated U-Turn and requested the
works to stop.

[14] After that, and in March 2018, Jabatan Kerja Raya Sabah decided to shift the position of the
Elevated U-Turn, amended its size and instructed the Contractor to proceed with the works.

[15] Subsequently, twenty -two (22) residents from Taman Milek Phase 1 signed another
Petition dated 9-4-2018 addressed to the 2nd Respondent, the Contractor and Perunding Puncak
Anugerah Sdn. Bhd. and again requested that the works for the Elevated U-Turn be stopped.

[16] By a letter dated 14-4-2018 addressed to Owners and Residents Neighbourhood Committee
of Taman Milek Phase 1 (exhibit RJK-3 or MN-2), Perunding Puncak Anugerah Sdn. Bhd. did
inform and explain inter alia, the following:

● (a).
● the EIA Report was approved by the Environment Protection Department;
● (b).
● the Elevated U-Turn had been shifted as far as possible towards the monsoon drain
and towards the junction;
● (c).
● one-meter height concrete New Jersey Barrier Wall would be provided to mitigate the
close proximity between the Elevated U-Turn and their houses;
● (d).
● bore piling method would be used to minimise the vibration;
● (e).
● the Elevated U-Turn was designed taking into account seismic (earthquake) loading;
and
 ● (f).
● the Contractor would not encroach into the drain reserve.

[17] Perunding Puncak Anugerah Sdn. Bhd. also called for a dialogue with the residents on
18-4-2018.

[18] On 18-4-2018 there was a dialogue between the representatives from the Jabatan Kerja
Raya, Sabah, the Environment Protection Department, the Land and Survey Office, the
Consultant and the Contractor with the residents of Taman Milek Phase 1.

[19] It seems the dialogue was held to explain to the residents of Taman Milek Phase 1 on the
changes made to the Elevated U-Turn in view of their objections.

[20] Then, by a letter dated 20-4-2018 signed by the Applicant addressed to the Environment
Protection Department (exhibit MN-2 in which the applicant himself referred to the letter dated
14-4-2018 of Perunding Puncak Anugerah Sdn. Bhd [exhibit RJK-3 or MN-2]), the applicant
alleged that that consultant had failed to address the issue of the close proximity of the Elevated
U-Turn to their houses and requested that an assessment be conducted to determine whether the
project should proceed.

[21] Following that, the Environment Protection Department did request the contractor and
Ensolve to clarify the complaints of the Residents of Taman Milek Phase 1 in respect of the
distance between the Elevated U-Turn and their houses.

[22] It seems that there were further dialogues with the Residents of Taman Milek Phase 1 on
15-5-2018, 13-7-2018 and on 20-7-2018.

[23] On 20-7-2018, the Applicant was furnished with a copy of the EIA Report dated August
2016 for the said Project.
[24] Thereafter, twenty-one (21) of the Residents of the Taman Milek Phase 1 then signed
another letter dated 2-8-2018 addressed to various ministries, authorities and bodies concerned,
alleging that Contractor had not comply with EIA Report dated August 2016 in that the Elevated
U-Turn was shifted from the original location between Heritage Plaza and Lot 15 Taman Milek
Phase 1 on the west side of Taman Milek playground. They again requested the building of the
Elevated U-Turn be stopped.

[25] Subsequently by a letter dated 20-8-2018, Ensolve explained to the 3rd Respondent that the
changes were made in view of the concerns of the Residents in respect of the close proximity of
the Elevated U-Turn to the boundary of the housing estate of the Residents of Taman Milek
Phase 1.

[26] Ensolve explained that the changes were to provide more clear space from the boundary.
The design was optimised where possible to minimize all environment impacts to the area
including social issues, safety, security and traffic aspects.

[27] As to the concern of the Residents of Taman Milek Phase 1 to the impact of noise and air
pollution, one additional monitor for air quality and noise measurement would be stationed at
Taman Milek Phase 1 subject to the requirement of Environment Protection Department. The
latest layout plans for the Elevated U-Turn were also furnished by Ensolve to the 3rd
Respondent.

[28] Subsequently, upon request of the Environment Protection Department, the Ensolve also
furnished to Environment Protection Department, the latest plan in the respect of the changes
made with the approval of the Jabatan Kerja Raya and Dewan Bandaraya Kota Kinabalu; the
expected or potential environmental impact due to the changes made to the Elevated U-Turn; the
proposed mitigation measures to address the expected or potential environmental impacts with
the updated latest mitigation plan.
[29] As required by Environment Protection Department, it seems that Ensolve also carried out
social survey at Taman Milek Phase 1 from 1-10-2018 to 8-10-2018 and Addendum
Socio-Economic Survey Report was also prepared and furnished to the Environment Protection
Department.

[30] It seems that there was a further meeting on 16-11-2018 between the representatives of
Ensolve, the Contractor and the Environment Protection Department on the changes to EIA
Report and on social survey made.

[31] Following the meeting, the Environment Protection Department also requested the
Contractor for overlay plan and the proposed mitigation measures during the construction and
post development stage to be submitted. These were submitted by Ensolve by a letter dated
26-11-2018.

[32] By a letter dated 19-12-2018 addressed to the Contractor, the 3rd Respondent informed the
amendments and additions made to the Agreement of Environmental Conditions dated
2-10-2017 which included a requirement to build a sound barrier wall along the boundary with
the housing lots in Taman Milek Phase 1. and required compliance thereto.

[33] It seems that there was a further meeting between the representatives of Jabatan Kerja
Raya, the Contractor and Consultants on 18-1-2019. This was followed by dilapidation survey
carried out by the Contractor on 21-1-2019 and 22-1-2019 for which they managed to carry out
on 6 out 22 houses in Taman Milek Phase 1 but not all. This is because either the remaining
residents were away or objected to the survey.

[34] On 25-1-2019, it seems that four (4) residents from Taman Milek went to site to protest. It
seems that there was confrontation between the residents and one of the workers at the site for
which one of the residents lodged a police report.
[35] On 27-1-2019, again, it seems that some residents went to the site to protest the erection of
a zinc hoard fence behind the back yard of their houses. A police report was again lodged.

[36] After that, it seems that there were again several meetings held between the Residents of
the Taman Milek Phase 1, the representatives from Jabatan Kerja Raya, the Contractor, Ensolve
and the local elected representative.

[37] In the meanwhile, on 4-3-2019, Jabatan Kerja Raya issued temporary stop work order to the
Contractor.

[38] On 2-4-2019, Taman Milek Phase 1 Residents Association Kota Kinabalu that the
Applicant was representing was registered under section 7 of Society Act 1966

[39] On 10-4-2019 and 11-4-2019, the Contractor attempted to carry out another dilapidation
survey of the houses at Taman Milek Phase 1 but was objected to by the Residents concerned.

[40] After that, the Applicant wrote a letter dated 20-4-2019 to the Chief Minister of Sabah in
respect of their objections to said Project.

[41] On 25-4-2019, there was another meeting/dialogue between the Residents concerned and
the representatives of the Contractor, the Jabatan Kerja Raya, the Environment Protection
Department and Ensolve. During the meeting/dialogue, the Residents concerned were informed
that the works for the said Project have to carry on.

[42] Thereafter, the Applicant wrote another letter dated 6-5-2019 to the Mayor of Kota
Kinabalu requesting for the Elevated U-Turn to be built at the location as original designed and
planned said to be in the initial EIA Report of August 2016 submitted by the Contractor to the
Environment Protection Department.
[43] The Applicant also wrote two (2) letters dated 10-5-2019 and 22-5-2019 to the Mentri
Pembangunan infrastruktur Sabah in respect of the objection to the construction of the Elevated
U-Turn.

[44] The Residents concerned also made two (2) press releases on 14-5-2019 and 22-5-2019 in
respect of their objections to the construction of the Elevated U-Turn.

[45] The Mayor of Kota Kinabalu did by a letter dated 10-6-2019 referred the complaints made
by the Applicant to the Jabatan Kerja Raya for feedback.

[46] By a letter dated 1-7-2019, the 2nd Respondent replied to the Mayor of Kota Kinbalu to
inform inter alia that:

● (a).
● the construction project to upgrade Jalan Lintas, Kota Kinabalu (Phase 2) was based
on the contract made between the Contractor with the Government and hence, all
terms and conditions required by the Government have to be adhered to by the
Contractor. These matters also include construction methods, work result and
environmental care which must comply with the required standard and quality. In
respect thereto, the Environment Protection Department had granted approval to the
Environmental Impact Assessment (EIA) and the Contractor had signed the
undertakings with the Environment Protection Department. As monitoring measures,
the Environmental Monitoring and Compliance Audit report was prepared every
quarterly and was submitted to the Environment Protection Department acting as the
controlling agency.
● (b).
● In addition, the design and location of the Elevated U-Turn at Lintas Plaza was
finalised during the value management lab and not during construction stage as
claimed in the complaints of the residents concerned. The design was decided upon
 by members from various technical fields and not just from the Environment
Protection Department. The construction work was to be carried out within the
existing road reserve. The issue of the structure being too close to the house of the
residents concerned did not arise.
● (c).
● although the said Project received objections from the residents concerned and to
some extent delayed, the Jabatan Kerja Raya would continue with the construction
works according to the specifications and conditions of the contract so that it could be
completed by the dateline for the convenience and interest of the public.

[47] On 8-7-2019, one of the residents again lodged a police report on the construction of the
Elevated U-Turn.

[48] After that, the Applicant wrote two (2) letters dated 11-7-2019 and 18-7-2019 to the
Environment Protection Department to request for a copy of the latest EIA Report and approval
letter of the Jabatan Kerja Raya in respect of the change in the master plan for the said Project.

[49] On the 16-8-2019, three (3) Residents then each lodged a police report respectively in
respect of the noise and vibration allegedly caused by ongoing construction of the said Project.

[50] After the issuance by the Applicant of a further letter dated 23-8-2019 to the Jabatan Kerja
Raya complaining the close proximity between the project location and the houses of the
Residents concerned, the nuisance and inconvenience caused to them and the air and noise
pollution from the on-going construction, on 26-8-2019, the Applicant make the application in
this action for leave for judicial review.

[51] Such leave was granted by the Court on 10-9-2019.

HELD:
Applicant was ordered to pay costs of the action in the sum of RM10,000.00 subject to and with
the allocatur fee.

RELEVANT STATUTE:

Section 12A of the Environment Protection Enactment 2002 provides:

“12A. (1) No person shall carry out any prescribed activities unless the environmental
impact assessment report or the proposal for mitigation measures thereof has been
approved by the Director

(2) Any person who contravenes subsection (1), -

● (a)
● in relation to environmental impact assessment report, commits an offence
and shall, on conviction, be liable to a fine not exceeding one hundred
thousand ringgit or to imprisonment for a term not exceeding five years or to
both; and
● (b)
● in relation to the proposal for mitigation measures, commits an offence and
shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or
to imprisonment for a term not exceeding two years or to both.”

section 15 of the Environment Protection Enactment 2002, it is provided that:

“15. (1) The Director shall, from time to time, prepare procedures and guidelines for the
preparation of environmental impact assessment and proposal for mitigation measures,
and the issuance of agreement of environmental conditions and mitigation declaration.
 (2) The Director may add to or vary the procedures and guidelines as he deems
necessary. “

Section 24(1) of the Environment Protection Enactment 2002 set out the functions and duties of the

3rd Respondent which I set out as follows:

“24. (1) There shall be a Director of the Environment Protection Department who shall
be appointed from amongst members of the State Public Service and whose functions and
duties shall be to –

(a)carry out or perform any action necessary to protect, conserve, rehabilitate, restore or
maintain sound environmental quality;

(b)incorporate environmental protection into the planning of any development activity or

utilization of any natural resource which is likely to have an adverse effect on the
environment;

(c)regulate any development activity or utilization of natural resources which has or is

likely to have adverse effect on the environment;

(d)protect sensitive areas for the conservation of bio-diversity and the maintenance of
environmental quality;

(e) take any action necessary to protect the aesthetic, natural and scenic environmental
quality;

(f)promote cooperation and collaboration between federal, state and local authorities on
the formulation and implementation of environmental protection policies and programmes;
(g) promote environmental research, science and technology;

(h) promote environmental awareness on the importance of environmental protection,

conservation and quality;

(i) conduct any survey, research or study on the state of the environment of the State or any
part thereof necessary for the formulation and implementation of policies relating to
environmental protection; and provides that

(j) carry out any function or duty in accordance with or pursuant to any of the provisions
under this Enactment.

(2)…..”

section 12D(1) and on what conditions and terms to be imposed and prescribed under 12E(1)
and (2) of the Environment Protection Enactment 2002.

Section 76 of the Evidence Act,1950 provides that:

“76 Certified copies of public documents

Every public officer having the custody of a public document which any person has a
right to inspect shall give that person on demand a copy of it on payment of the legal
fees therefor, together with a certificate, written at the foot of the copy, that it is a true
copy of the document or part thereof, as the case may be, and the certificate shall be
dated and subscribed by the officer with his name and his official title, and shall be
sealed whenever the officer is authorized by law to make use of a seal, and the copies so
certified shall be called certified copies.
“12D. (1) If the Director, upon examining the environmental impact assessment report or the
proposal for mitigation measures submitted under section 12B and after making such inquires
as he considers necessary, is of the opinion that –

● (a)
● the report or the proposal has complied with the procedures and guidelines;
● (b)
● the measures required to prevent, mitigate or abate the adverse environmental
impacts or to protect the environment are adequate; and
● (c)
● the impacts are not detrimental to the environment,

he may approve the report or the proposal.

(2) If the Director, upon examining the environmental impact assessment report or the proposal
for mitigation measures and after making such inquires as he considers necessary, is of the
opinion that –

(a)the report or the proposal does not comply with the procedures and guidelines;

(b)the measures required to prevent, mitigate or abate the adverse environmental impact or to
protect the environment are inadequate; or

(c)the impacts are detrimental to the environment,

he shall not approve the report or the proposal and shall inform the person intending to carry
out the prescribed activities and the relevant authority accordingly.”

section 12E(1) and (2) of the Environment Protection Enactment 2002 provides that:
“12E. (1) The Director shall, before the commencement of any prescribed activities in
respect of which an environmental impact assessment report or proposal for mitigation
measures has been submitted and approved, require the person to undertake in writing to
comply with any terms and conditions as may be prescribed by the Director by signing
an agreement of environmental conditions or a mitigation declaration, as the case may
be.

(2) The Director may add to, vary or revoke the terms and conditions of the agreement
or the declaration.

(3) … “ (Emphasis added)

(SORRY FOR LAST CASES UNPROPER SIKIT SBB PANJANG SANGAT CASES
DIA WITHOUT SUMMARY OF EVERYTHINGS). SORRY IF THIS CASE
CONFUSING.