Who’s the Ultimate Planning Authority in Malaysia? Reviewing the Powers and Role of the Appeal Board

[1]Town and Country Planning Act 1976 (Act 172) (Malaysia). This Act is referred to as the TCP Act 1976 in this article.

[2]Lee Lik Meng, Abdul Mutalip Abdullah and Alip Rahim, 1990, Town Planning in Malaysia - History and Legislation (Monograph, Universiti Sains Malaysia). Essentially, the Malaysian planning system created in 1976 is modelled on the Structure Plan /Local Plan system introduced in the 1970 Act of UK.

[3]See Environmental Planning, 32nd Report of the Royal Commission on Environmental Pollution, March 2002. www.rcep.org.uk and Malcolm Grant, The Environmental Court Project Final Report. Department of Environment, Transport and the Regions, UK (May 2000). http://www.planning.detr.gov.uk/court/index.htm.

[4]The lists are contained in the Ninth Schedule of Federal Constitution of Malaysia. See KV Padmanabha Rau, 1986, Federal Constitution of Malaysia – A Commentary, Kuala Lumpur, Malaysian Current Law Journal Sdn Bhd. p 567 –575.

[5]S 22(2)(aa) TCP Act 1976, amended via s 25(a), TCP (Amendment) Act 2001.

[6]Article 92(3) of the Constitution provides that the development plan means “a plan for the development, improvement, or conservation of natural resources of the development area, the exploitation of such resources, or the increas of means of employment in the area”.

[7]The proposed Town and Country Planning Ordinance 1966 was submitted to the Ministry of Local Government by the Commissioner of Town Planning (Frank Watkinson) on 12.7.1996 and contain ed amongst others a proposal for a central planning authority headed by the Federal Minister. Various revisions were made and the Revised National Planning Act 1972 provided for 5 levels of planning authorities including National and Regional bodies. However, the planning law when finally approved in 1976 contained no Nation al or Regional Planning bodies or plans.

[8]Act A1129, Percetakan Nasional Malaysia Berhad (National Printers). Gazetted on 27th September 2001.

[9]S 2A TCP Act 1976, inserted via s 7, TCP (Amendment) Act 2001.

[10]Provided for under Part IIB, s 6A TCP Act 1976, inserted via s 11, TCP (Amendment) Act 2001.

[11]S 7(3)(aa) TCP Act 1976, inserted via s 12, TCP (Amendment) Act 2001.

[12]S 10(4)(a) TCP Act 1976, inserted via s 15, TCP (Amendment) Act 2001.

[13]S 22(2A) TCP Act 1976, inserted via s 25, TCP (Amendment) Act 2001. Major developments include new townships (with population over 10,000 or covering more than 100 hectares), airports, seaports, railway lines, highways, dams, main power stations and toxic waste disposal. Developments on hill tops, hill slopes and in designated environmentally sensitive areas are require consultation with the Council.

[14]National Land Code 1965 (Malaysia), henceforth referred to as NLC 1965.

[15]In comparison, the UK Minister for planning (Secretary of State for the Environment) must make his decisions based on his policies which could include a speech given at a dinner function.

[16]However, in Penang, a Committee headed by a State Executive Councillor (a State level “Minister”) has been set up to better coordinate and ensure lesser conflict between conversions and the approved plans.

[17]In Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn. Bhd [1979] 1 MLJ 135.

[18]For instance, the Courts have declared that the Federal Government have no jurisdiction over EIA in the State of Sarawak. See Alan K.J. Tan, “Preliminary Assessment of Malaysia’s Environmental Law”, National University of Singapore, http://sunsite.nus.edu.sg/apcel/index.html.

[19]There are two local planning authorities in Penang State, the other being the Municipal Council of Seberang Perai on the mainland.

[20] Jamil Ahmad, ‘Procedures and Conduct of Appeal Board’ (Paper presented at the Kedah State Appeal Board Workshop, Alor Setar, Malaysia, 15 August 2000 in Malay).

[21]Town and Country Planning (Amendment) Act 1995 (Malaysia).

[22]Fong Chek Sam (deceased) was a former Director of the Penang State Town and Country Planning Department. He was appointed for two consecutive terms (Penang State Government Gazette dated 9th Nov 1989 and 10th Oct 1991).

[23]S 36(2)(a) TCP Act 1976 was amended via s 12, TCP (Amendment) Act 2001 to insert the words “or other suitable qualifications and experience” relating to appointment of the Chairman and Deputy Chairman of the Appeal Board.

[24]The planners in the local authorities sometimes have to enlighten the Board members on planning matters at the hearings.

[25]Appeal Board case Hwa Properties Sdn. Bhd. vs Majlis Perbandaran Pulau Pinang (LR/PP/6/93).

[26]Written judgment of Appeal Board case KHSB Marketing Sdn Bhd vs Majlis Perbandaran Pulau Pinang (LR/PP/10/2001), dated 21 March 2002, p. 1.

[27]Appeal Board case Tetuan Leong Seng Construction Sdn. Bhd. vs Majlis Perbandaran Pulau Pinang (LR/PP/16/92).

[28]Appeal Board case Tetuan Ruby Development Sdn. Bhd. vs Majlis Perbandaran Pulau Pinang (LR/PP/6/93).

[29]Victorian Civil and Administrative Tribunal Act 1998 (Vic).(Available online at http://www.vcat.vic.gov.au/). Part 16.

[30]Resource Management Act 1991, New Zealand. http://www.mfe.govt.nz/management/act.htm.

[31]V. Anantaraman, Malaysian Industrial Relations, Law & Practice (1997), Universiti Putra Malaysia Press. p 135.

[32]Civil Appeal No. 0-01-50-00 in the Court of Appeal in Chong Co. Sdn. Bhd. vs Lembaga Rayuan Pulau Pinang and Majlis Perbandaran Pulau Pinang. Decision as reported to the local planning authority by its Director of Legal Department vide memo dated 28 Mac 2002 (S.45/9/1-78(U)).

[33]Appeal Board case Goh Hock Seng vs Municipal Council of Seberang Perai (LR/SP/4/91).

[34]This provision was originally included in the draft in 1972 but excluded from the TCP Act 1976. However, “other material consideration” is provided for in the Federal Territory (Planning) Act 1982 s. 22(4)(a) & (b). This justification have been used several times by the Board.

[35]Specifically, it requires that the local planning authority “shall take into consideration such matters as are in its opinion expedient or necessary for proper planning”.

[36]James Cameron Blackhall, Planning Law and Practice (1998). Cavendish Publishing Ltd., London.

[37]Malcolm Brady, ‘Material Considerations’ (1999) (16) Planning Inspectorate Journal http://www.planning-inspectorate.gov.uk.

[38]Appeal Board case Datastream Corporation Sdn Bhd vs Municipal Council of Penang Island [1993].

[39]This was established for the Industrial Court which was created under the Industrial Relations Act 1967. See V. Anantaraman (1997) p. 135 (see note 31).

[40]Ahmad Ibrahim and Ahilemah Joned, 1987.

The Malaysian Legal System. Dewan Bahasa dan Pustaka, Kuala Lumpur.

[41]Ismail Ibrahim, ‘Functions and Role of Appeal Board Under Town and Country Planning Act 1976 (Act 172)’ (Paper presented at the Kedah State Appeal Board Workshop, Alor Setar, Malaysia, 15 August 2000 in Malay).

[42]Notes of a briefing by the Legal Advisor to the Ministry of Housing and Local Government dated 27th July 1987 to the Committee for Town and Country Planning Act concerning Johor State Government’s proposal to amend s. 36(9) and (13) of the Town and Country Planning Act 1976.

[43] Desmond Heap, An Outline of Planning Law (11th Edition, 1996).

[44]Ibid 34.

[45]Ibid 193.

[46]Victorian Civil and Administrative Tribunal Act 1998 (Vic).

[47]See for example decisions on hill land excision (note 38).

[48]The Federal Court is the successor to the Supreme Court and is the final court of appeal in Malaysia.

[49]In Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan (Federal Court, Kuala Lumpur – Civil Appeal No 02-6 of 1996) [1999] 3 MLJ 78 the Court declined to issue an order to extend the period of validity of a planning permission even though it found that the local planning had acted outside of the law.

[50]See Syarikat Berkerjasama Gelugor case (note 49).

[51]Appeal Board case Tetuan Junimas Sdn. Bhd. vs Municipal Council of Penang Island (LR/PP/7/95).

[52]See example in s 253 Resource Management Act 1991 (New Zealand) and Victorian Tribunal Act.

[53]Members of tribunals have no security of tenure. Their appointment for fixed tems which may or may not be renewed. See news article “Council: Industrial Court may face chaos” Friday 29 March 2002, The Star Online http://www.thestar.com.my.