WENG LEE GRANITE QUARRY SDN BHD v. MAJLIS PERBANDARAN SEBERANG PERAI

[2019] 6 MLRA 66

WENG LEE GRANITE QUARRY SDN BHD v. MAJLIS PERBANDARAN SEBERANG PERAI
Federal Court, Putrajaya
Ahmad Maarop PCA, Azahar Mohamed CJM, Ramly Haji Ali, Alizatul Khair Osman Khairuddin, Nallini Pathmanathan FCJJ
[Civil Appeal No: 02(f)-110-11-2018(P)]
15 October 2019

JUDGMENT

Azahar Mohamed CJM:

Introduction

[1] This is an appeal against the judgment of the Court of Appeal that reversed the judgment of the High Court.

[2] This appeal concerns the question of whether a provision in a statute is prohibitory or regulatory in character.

Background Facts

[3] The factual background leading to this appeal is quite simple and straightforward. We will only highlight very briefly the pertinent undisputed facts insofar as they are relevant to the issues that arise for decision in this appeal before us.

[4] Majlis Perbandaran Seberang Perai ("the respondent") is the Local Authority for the Seberang Perai municipal area.

[5] At all material times, Weng Lee Granite Quarry Sdn Bhd ("the appellant") was a granite quarry operator and the registered owner of pieces of land in the Seberang Perai municipal area ("the subject lands") on which lands it carried out quarry activities that involved mining operations and the removal of rock materials beyond the boundaries of the subject lands.

[6] Title to each of these subject lands was issued under the National Land Code (Penang and Malacca Titles) Act 1963 ("the 1963 Act"). All titles carry an express condition ("Condition B") that states as follows:

"The land comprised in this title:

(B) Shall not be affected by any provision of the National Land Code or any other written law prohibiting mining or the removal of specified materials beyond the boundaries of the land."

[7] Since 1972, the appellant had been carrying out rock quarry activities on the subject lands, which are located next to the Mengkuang Dam in the Seberang Perai municipal area.

[8] In 2001, the respondent issued a stop work notice to the appellant as the appellant was carrying out quarry operations on the subject lands without having first applied for and obtained Earthworks Plan Approval from the respondent. At this point, there was no protest made against the respondent and the appellant readily submitted the Earthworks Plan, which was approved by the respondent on 15 July 2002. The approval was subjected to various terms and conditions.

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