A group of fishermen and environmental organisations (“Applicants”) challenged the planning permission granted for the Penang South Reclamation Project, also known as Silicon Island.
At the High Court, the Applicants’ Judicial Review Application No.: PA-25-101-12/2023 (“Application”) was dismissed for being filed out of time. The Applicants later appealed against the High Court’s decision at the Court of Appeal.
On 30 July 2026, the Court of Appeal in Civil Appeal No.: P-01 (A)-499-08/2024 upheld the decision of the High Court and dismissed the Applicants’ appeal on the basis that the Application was filed out of time. The Applicants had until 1 December 2023 to file their Application but only did so on 29 December 2023, which was almost one month later.
The decision serves as a timely reminder that compliance with procedural deadlines is just as important as having a strong case on the merits. In judicial review proceedings, strict time limits apply. Failure to act promptly may prevent the Court from considering the merits or substance of a claim. In other words, failure to comply with procedural requirements may prevent a claim from being determined on its merits.
On a separate note, an interesting aspect of this case is that the Court of Appeal also considered a novel question regarding which authority has the legal power to approve reclamation projects carried out in Malaysia’s territorial sea. Specifically, the Court considered whether the planning permission could lawfully be granted under the Town and Country Planning Act 1976 (“TCPA”) or whether the matter fell within the Federal Government’s jurisdiction under the Territorial Sea Act 2012 (“TSA”) and the Baselines of Maritime Zones Act 2006 (“BMZA”).
Despite dismissing the appeal, the Court of Appeal nonetheless considered this point wherein it held that since the reclamation project was conducted in the territorial sea, it would fall solely within the jurisdiction of the Federal Government. The Court of Appeal anchored its finding on two legal maxims:
- “Generalia specialibus non derogant”. Simply put, if there is an inconsistency between general laws and specific laws, the specific laws would prevail. In this case, the Court of Appeal held that the specific provisions of sections 3(1) to (3), 4 and 6 of TSA read with section 5(1) of BMZA shall prevail over the general definitions of “development”, “engineering operation“, “land” and “use” in section 2(1) of the TPCA.
- “Lex posterior derogat priori”. In simple terms, if there is an inconsistency between a newer law and a prior law, the newer law would prevail. The TSA was enacted in 2012 and the BMZA was passed by Parliament in 2006, whereas the TCPA was enacted in 1976. Accordingly, the Court of Appeal held that the provisions of the TSA and BMZA shall override the earlier definitions of “development”, “engineering operation“, “land” and “use” in section 2(1) of the TPCA.
Accordingly, the Court of Appeal held that the director of the state town and country planning department and the state planning committee did not have the statutory power to grant a planning permission for the reclamation project.
The decision also serves as a reminder that developers and public authorities should ensure that the appropriate statutory approvals are obtained at the outset to minimise the risk of legal and economic pitfalls.
Reports on this case may be assessed here.
- www.freemalaysiatoday.com/category/nation/2026/06/30/court-rejects-fishermens-appeal-against-penang-reclamation-project.
- www.freemalaysiatoday.com/category/nation/2026/07/05/penang-south-reclamation-ruling-explained.
- www.nst.com.my/news/nation/2026/06/1476955/court-dismisses-appeal-against-penang-reclamation-project-procedural.
This update is prepared by Muhammad Sirhan Sidqi bin Abdul Aziz.
For further information, please contact:
Muhammad Sirhan Sidqi bin Abdul Aziz, Shearn Delamore & Co.
sirhan.aziz@shearndelamore.com
