MALAYSIAN TOWN AND COUNTRY PLANNING - … · 2.6.5 Sources of Malaysian Law 93 2.6.5.1 Common Law...

MALAYSIAN TOWN AND COUNTRY

PLANNING

LAW AND

Jaria Maidin

Publication

CONTENTS Preface i 1.7.7 Participation in the vii Development Plan ix Preparation 28 Table of Cases xiii 1.7.8 Appeal in the Planning Table of Legislation Abbreviations

XXV

Process 30

CHAPTER 1 BACKGROUND

SYSTEM 1

1.1 Introduction 3

1.2 Origins and Evolution of Modern Town and Country Planning System 3

1.3 Evolution of Town and Country Planning System in Malaysia 8

1.4 Development of Town and Country Planning Law in Malaysia 10

1.5 Town Planning Enactment 1923 11

1.6 Post-Merdeka Evolution of Town and Country Planning Law 15

1.7 Salient Features of the Town and Country Planning System 19

1.7.1 State Authority Power to Planning

1.7.2 Planning Authorities 22

1.7.3 Development Plans 25

1.7.4 Development Control 26

1.7.5 Decision-Making Process 27

1.7.6 Public Participation in the Land Planning Process 28

POLICY AND LEGAL FRAMEWORK REGULATING TOWN AND COUNTRY PLANNING 31

2.1 Introduction 33

2.2 Concepts, Theory, and Ideology Influencing Land Use Planning and Development Control 33

2.3 Malaysian Planning Policies 43

2.3.1 Vision 2020 45

2.3.2 Outline Perspective Plan 46

2.3.3 National Development 47

2.3.4 National Five-Year Development Plans 47

2.3.5 Supporting Various National Policies 49

The National Green Technology Policy (NGTP),

2009 49

Malaysian Budget 50

2.3.5.3 The National Policy on Climate Change 50

2.3.6 Total Planning and Development Doctrine 51

2.4 Authorities Responsible for Formulating Planning Policy 53

Contents

2.4.1 Formulation of Policy by the National Land Council 55

2.4.2 State Authorities' Responsibilities in Formulating Planning Policy 55

2.5 Legal Regulatory Framework 56

2.5.1 Town and Country Planning Act 1976 (Act 172) 61

2.5.1.1 Amendments to Town and Country Planning 1993 63

2.5.1.2 Amendments to Town and Country Planning 1995 64

2.5.1.3 Amendments to the Town and Country Planning Act in 2001 65

Amendments in 2007 68

2.5.2 Planning 69

2.5.2.1 Special Rules for Development Control in Putrajaya 74

2.5.2.2 By-Laws Made Under Street, Drainage and Building Act 1974 74

2.5.2.3 Legal Effect of Rules 75

2.5.3 Planning Standards and Guidelines 79

Land Development and Property Construction Legislation 80

2.6.1 Government Act 1976 80

2.6.2 Street, Drainage and Building Act 1974 81

2.6.3 Federal Territory (Planning) Act 1982 (Act 267) 82

2.6.4 National Land Code 1965 88

2.6.5 Sources of Malaysian Law 93

2.6.5.1 Common Law 93

2.6.5.2 Federal Constitution 1957 95

2.6.5.3 State Constitutions 95

2.6.5.4 Legislation 96

2.6.5.5 Customary and Native Law 96

2.6.5.6 97

2.6.5.7 International Law 97

2.7 Conclusion 98

CHAPTER 3 ORGANISATION OF PLANNING ADMINISTRATIVE AUTHORITIES 99

3.1 Introduction 101

3.2 Malaysian Government Administration Structure 101

3.2.1 The Executive 104

3.2.2 104

3.2.3 The 107

3.2.4 Relationship Between Key Agencies Involved in Planning at Federal and State Level 109

3.3 Establishment of National Councils at Federal Level for Co-ordinating the Federation and State Relations 109

3.3.1 National Land Council

3.3.2 National Council for Local Government

3.3.3 National Physical Planning Council

Contents

3.4 Organisation of Planning Authorities

3.4.1 Administration at Federal Level

3.4.1.1 The Minister

and Local Government 119

3.4.1.2 National Physical Planning Council 120

3.4.1.3 Director General of Town

and Country Planning 122

3.4.2 Regional Planning Committee 125

3.4.3 State Level Administration 129

3.4.3.1 State Authority 130

3.4.3.1.1 State Authority's Power to Make Rules 131

3.4.3.1.2 Responsibility And Power To Validate Development Plans 133

3.4.3.2 State Planning

Committee 133

3.4.3.3 of State

Planning Committee 136

3.4.3.3.1 Power of State Planning Committee to Conduct a Local Inquiry or Hearing 139

3.4.3.4 State Director of Town

and Country Planning 140

3.4.4 Local Government Administration

3.4.4.1 Establishment of Local

Authorities 141

3.4.4.2 Responsibilities of Local

Authorities 146

3.4.4.3 Local Authority's Functions

as Local Planning

Authority 149

3.4.4.4 Finances of Local

Planning Authority

3.4.4.5 Power to Borrow

Money 153

3.4.4.6 Power to Dispose of

Land and Property 155

3.4.4.7 Power to Appoint and

Authorise Persons to

Act on Behalf 156

3.4.4.8 Power of Entry on

Land 157

3.4.4.9 Power to Agents,

Enter Arrangements,

and Establish

159

3.4.4.10 Power to

Documents or

Authority to Conduct Prosecution 160

3.4.4.12 Authority to Impose

Penalty for Offences 161

Privileges of Local

Planning Authority 162

Claims In Respect

or Loss

3.5 Extent of Discretionary Powers of Planning Authorities 163

3.6 Protection of the Local Authority in Performance of Planning Functions

3.6.1 Extension of Protection to Members and Agents

3.6.2 Limitation Period to Action Against

Public Authorities

3.7 181

Contents

CHAPTER 4 STATUTORY LAND USE PLANNING SYSTEM IN MALAYSIA: ADMINISTRATIVE AND LEGISLATIVE FRAMEWORK 183


4.2 National Planning Framework 186

4.3 Development Plan System in Malaysia 188

4.4 Rationale for Preparing Development Plans 192

4.5 of Development Plans within the Statutory Land Use Planning System 194

4.6 Types of Development Plans 198

4.6.1 National Physical Plan 200

4.6.1.1 Functions of National Physical Plan 203

4.6.1.2 Preparation Process and Implementation Mechanism 204

4.6.2 Regional Plan 205

4.6.2.1 Regional Planning in the Hierarchical System of National Development Plans 206

4.6.3 Plan 209

Scope and Purpose of Structure Plan 210

4.6.3.2 Preparation of Structure

Plan 210

4.6.4 Local Plan 218

4.6.4.1 Scope and Purpose of Local Plan 218

4.6.4.2 Form and Content of Local Plan 219

4.6.4.3 Production of Local Plan 222

4.6.4.4 Special Area Plan 226

4.6.4.5 Potential Problems Arisingfrom Plans 226

4.7 Legal Effects of Development Plans in the Decision Making Process 226

4.7.1 Status of Development Plan in the Decision Making Process 227

4.7.2 Requirements for Use of Land and Buildings to be in Conformity

Local Plan 227

4.7.3 Publicity of Planning Application

4.7.4 Role of Development Plan in Planning Permission 233

4.7.5 Inconsistency between Building By-Laws and Development Plan 243

4.7.6 Development Charge 243

4.7.7 Notice and Acquisition of Land Pursuant to Town 244

4.7.8 Status of Development Plan under the National Land Code 1965 245

4.7.9 Role of Development Plan in Land Acquisition Proceedings 246

4.8 Conclusion 247

CHAPTER 5

DEVELOPMENT CONTROL 249


5.2 Rationale for Introducing Land Use Planning and Development Control 251

Contents

5.3 Development 254

5.3.1 Meaning of Building Operations 257

5.3.2 Meaning of Building 259

5.3.3 Meaning of Engineering Operations 259

5.3.4 Meaning of Material Change of Use 260

5.4 Avenues for Development Control 265

5.4.1 Control During Development Plan Preparation 265

5.4.2 Control of Development by Imposing to Planning Permission 267

5.4.2.1 Development Activities Requiring Planning Permission 270

5.4.2.2 Operational Work 270

5.4.2.3 Material Change 271

5.4.2.4 Land Development Process - Subdivision and of Land 272

5.4.3 Prohibition of Development Contrary to Approved Planning Pennission 272

5.4.4 Appeal 273

5.5 Development Activities Exempted Requirement of Applying for Planning Permission 274

5.5.1 Improvement or Alteration of Building that Affect the Interior

Building 274

5.5.2 Maintenance of Infrastructure and Utility Projects by Any Authority

bv Law

5.5.3 Excavation of Wells for Agriculture 276

5.5.4 Use of Land or Building for Period Not Exceeding One Month 277

5.5.5 Construction of Temporary Buildings 277

5.5.6 Construction or Use of Any Land or Building within the Curtilage of a

278

5.5.7 Material Change in the Use of Land or Building that has been Exempted from Obtaining Planning Permission by the State Authority 279

5.5.8 Development within Areas 279

5.5.9 Development of a Unit of Dwelling-House on a Lot that has Obtained Planning Permission for Overall Layout 280

5.5.10 Space or Renovation of Less than 500 Square Feet 280

5.7 Development Activities Undertaken by the Federal or State Government 281

5.8 Conclusion 283

CHAPTER 6 APPLICATION FOR PLANNING PERMISSION 285


6.2 Requirement in Applying for Planning Permission 288

6.2.1 Application for Land Development Matters 289

Contents

6.2.1.1 Variation or Alteration or Conversion of Category

Use 290

6.2.1.2 Subdivision 293

6.2.1.3 Partition ofLand 295

6.2.1.4 Amalgamation of Lands 296

6.2.1.5 Simultaneous Application for Subdivision and Variation of Restriction and Categories 298

6.2.1.6 Provisions 299

6.2.2 Application for Planning Permission

6.2.3 Application for Building Plans 305

6.2.4 Application for Earthworks Plans, Road and Drainage Plans 306

6.3 Inconsistencies between Provisions of National Land Code 1965 and Local Authority By-Laws 309

6.4 Who Can for Planning Permission? 310

6.5 Application to be Made in the Prescribed Form 312

6.5.1 Documents Submitted with Appücation for Planning Permission

6.5.1.1 Development Proposal Report 313

6.5.1.2 Layout Plans

6.6 State Authority's Power to Make Rules for Regulating Professionals 317

6.7 Improvements to the Delivery System

6.8 Persons to Prepare Plans and Documents to be Submitted for Application of Planning Permission 322

6.8.1 of Professionals in Land Development and Building Construction 325

6.8.2 of Professionals 334

6.9 Conclusion

CHAPTER 7 PROCESSING OF PLANNING APPLICATIONS

335

337

339 Introduction

7.2 Processing of Application for Planning Permission 339

7.3 Development Approval Procedures 341

7.3.1 Departments Involved With Development Control 342

7.4 Treatment of Application under the Town and Country Planning Act 1976 344

7.5 Power of Local Planning Authority to Give Directions with Regard to a Planning Application 349

7.6 Processing of Applications for Planning Permission 353

7.6.1 Requirement of Publicity of Applications for Planning Permission 355

7.6.2 Categories of Neighbouring Lands 363

7.7 Matters to be Considered in Processing Planning Application 364

7.7.1 Dealing with Large Scale Developments 366

7.7.2 Rights of Local Planning Authority to Impose Conditions on Planning Permission 369

7.7.3 Guidance on Conditions that Can be Imposed on an Application for Planning Permission 376

7.7.4 Decision 384

7.8 Duration of Planning Permission 385

7.8.1 Extension of Planning Permission 385

7.8.2 Revocation and of Planning Permission and Approval of Building Plans 387

7.8.3 Revocation Order 388

7.8.4 Reimbursements for Carrying out Demolition Works 388

7.8.5 Compensation for Revocation of Planning Permission or Approval

Building Plan 389

7.8.6 Compensation for Modification to Planning Permission or Approval of Building Plan 390

7.8.7 Appeal against the of Reimbursement or Compensation Awarded 391

7.9 Appeal Against the Decision of the Local Planning Authority 391

7.10 Exemption from Payment of Fees and Charges on Grant of Planning Permission 393

Contents

7.11 Appeals 393

7.12 Conclusion 395

CHAPTER 8 ENVIRONMENTAL IMPACT ASSESSMENT 397


8.2 What is an Environmental Impact Assessment? 400

8.3 Planning and Environmental Protection 403

8.4 Origins and Development of Environmental Impact Assessment 403

8.4.1 Meaning and Characteristics of Environmental Impact Assessment 406

8.5 Practice of Environmental Impact Assessment in Malaysia 407

8.5.1 Project Concept 412

8.5.2 Environmental Impact Assessment Procedure

8.5.3 Environmental Impact Assessment

8.5.4 Detailed Environmental Impact Assessment 415

8.5.5 Reference 416

8.5.6 Detailed Assessment 417

8.5.7 Preliminary Environmental Impact Assessment Reports

8.5.8 Detailed Environmental Impact Assessment Reports

8.5.9 Consultation 418

8.5.10 Persons Authorised to Conduct Environmental Impact Assessment

419

Contents

Guidelines for Conducting Environmental Impact

9.5.9 or Earthworks and Unauthorised

Assessment 420 Buildings 443

8.5.12 Project Approving 9.5.10 Demolition or Authority 420 of Unauthorised Building 444

8.6 Environmental Impact Penalty for Letting Out or Assessment and Land Use Selling Unauthorised Planning 420 Building 447

8.7 Conclusion 423 9.5.12 Land to be Set Apart for Back-Lanes 447

CHAPTER 9 9.5.13 Prohibition of Building BUILDING CONTROL on Unsanitary Ground 449 SYSTEM 425 9.5.14 Buildings over Public Sewers

Introduction 427 Not to be

9.2 Rationale for Building Erected Without Local

Control 427 Authority's Consent 450

9.3 Legal Framework 9.5.15 Removal of Roofs and Walls

Regulating Building Construction 428

Made of Combustible Materials 450

9.4 Requirement to Obtain 9.5.16 Erection of Compartments,

Permission for Erection of Galleries, etc, in

Buildings 429 Buildings 451

9.5 Submission of Plans for 9.5.17 Movable Shed Not to be

Erection of Buildings 432 Erected Without Permission 452

9.5.1 Power of Local Authority to Give Directions 434 Local Authority Can Order

Making of Drains for are Not 9.5.2 Unauthorised Erection,

Local Authority Can Order Making of Drains for

are Not Alteration and Use 436 Properly Drained 452

9.5.3 Unauthorised Alteration 438 9.5.19 Hoardings to be Set Up 9.5.4 Unauthorised Use of during Building

Building 439 Operations 453

9.5.5 Reviewing Safety and 9.6 Certification of Building by Local Upon Completion 453

Authority 439 9.6.1 Substitution of Certificate 9.5.6 Order for and of Fitness for Occupation

Resumption of Building with Certificate of Completion Work 441 and Compüance 455

9.5.7 Penalty 442 9.6.2 Powers of Local Authority 9.5.8 Inspection of Building by Unaffected 458

Local Authority 443

Contents

9.6.3 Rationale for Replacing of Fitness for

Occupation with Certificate of Completion and Compliance 459

9.6.4 Professionals Responsible for Issuance of Certificate of Completion and Compliance

Professionals Involved in Construction of Building 462

9.6.5 Approval of Planning Permission and Building Plan 463

9.6.6 Compliance to Technical and Conditions in the Certificate of Completion and Compliance System 463

9.6.7 Building Construction Completion Stage

Process 466

9.6.8 Certificate of Completion and Compliance Issuing Process 470

9.6.9 Penalties 471

9.6.10 Responsibilities of Local Authority and Principal

Person 473

in the Implementation of Certificate of Completion and Compliance System 475

9.6.12 Offences 476

9.7 477

CHAPTER 10 ENFORCEMENT OF DEVELOPMENT CONTROL 479


10.2 Rationale for Enforcement of Development Control

10.3 Offences Relating to Unauthorised Development 481

10.4 Enforcement in Cases of Failure to Obtain Planning Permission 483

10.4.1 Service Contravention Notice for Failure to Obtain Planning Permission 484

10.4.2 Penalty for Failure to with Notice 485

10.4.3 Occupier Not Liable for Development Carried Out without His Knowledge 486

10.5 Development Contrary to Planning Permission 487

10.5.1 Service of Contravention Notice 488

10.5.2 Penalty for Failure to Comply with Notice 489

10.5.3 Fees Payable on Application for Planning Permission 489

10.5.4 Notice to Bring Development In Conformity with Planning Pennission 489

10.5.5 Occupier Not Liable for Development Contrary to Planning Permission Carried Out without His Knowledge 490

Contents

10.6 Development Inconsistent with Modified Planning Permission or Approved Building Plan 490

10.6.1 Service of Notice Requiring Compliance 492

10.6.2 Penalty for Failure to Comply with Notice 493

10.6.3 Penalty for Failure to Discontinue Any Activity 493

Liability of Occupier if Development Inconsistent with Modified Planning Permission or Approval

Building Plan 493

Execution of Notices by Authorised Persons 494

10.7 Requisition Notices 495

10.7.1 for Compliance with Requisition Notice 496

10.7.2 Appeal against of Compensation 496

10.7.3 Appeal against Requisition Notice 497

10.7.4 Penalty for with Requisition Notice 497

10.8 Enforcement for Failure of Building or Earthworks and Unauthorised Buildings 498

10.9 the Decisions of the Local Planning Authority 503

10.10 Authority to Conduct Prosecution 503

10.11 Offences 504

Offences by Corporations (Body Corporate) 505

Penalty for Interference with Marks 506

Admission of Documents as Evidence in Legal Proceedings 506

10.11.4 Documents 507

Service of Documents on the Owner or Occupier of Land or Building 508

10.12 Jurisdiction of Courts 508

10.13 509

CHAPTER 11 DISPUTE RESOLUTION 511


11.2 Appeal in the Land Use Planning and Development Control Process

113 Planning Appeal Board 514

11.3.1 Members of the Appeal 515

11.3.2 ofChairman of Appeal Board

11.3.3 Interest 517

11.3.4 Can Appeal? 518

11.3.5 of Appeal Board 519

Conduct of an Appeal Before the Appeal Board 521

11.3.7 Power of Appeal Board to Witnesses 522

11.3.8 is Final 523

11.3.9 Restricted Access to Appeal Board 528

Judicial Review 530

Contents

Grounds Availing Judicial Review

Role of Court in Reviewing Decisions of Planning Authorities 543

11.4.3 Judicial Review in Ensuring Accountability 549

Courts Power to Grant Relief and Consequential Orders 550

Limit to Make Application for Judicial Review

11.5 557

CHAPTER 12 TREE PRESERVATION ORDERS 559


12.2 Tree Preservation Orders 561

12.3 Legal Framework 562

12.4 Power of Local Planning Authority to Make Tree Preservation Orders 563

12.4.1 Local Planning Authority to Planning Conditions for Securing Planting of Trees 567

12.5 Appeal against Tree Preservation Orders 568

12.6 Compensation Under Tree Preservation

Orders 568

12.7 of Trees 569

Local Planning Authority to Replace Trees 570

12.8 Appeal Regarding Replacement of Trees 570

12.9 Revocation of Tree Preservation Orders

12.10 Prohibition to Tree with Girth Exceeding

571

0.8 Metres 571

12.11 Enforcement 572

12.12 Problems Associated with Protection of Trees 572

Condusion 573

REMEDIES FOR VERSE PLANNING DECISIONS 575


13.2 Compensation for Restrictions on Development 577

13.3 Purchase Notices and Acquisition of Land 579

State Authority to Decide on Purchase Notice 581

13.4 Declaration of Development Areas 582

Assessment of Compensation 585

13.4.2 of Compensation to be Paid for Acquisition of Land 587

13.5 Powers of Local Planning Authority on Matters Relating to Development Areas 588

Local Planning Authority to Borrow Money and to Deal with Land or Property in a Development Area 589

Contents

13.5.2 State Authority to Make Rules on Matters Pertaining to Development Areas 590

13.6 Condusion 590

CHAPTER 15 PLANNING AND ENVIRONMENTAL PROTECTION 591


14.2 Impact of Land Development on Environment 594

Tracing the Link between Land Use Planning and Environmental Protection 596

14.2.2 Definition and Concept ofSustainable Development 599

14.2.3 Local Agenda 21 for Implementing Sustainable Development in Local Authority Areas 599

14.3 Formulation of Development Policies for Balancing Environmental Issues 601

14.6.2 During Development Control Process 621

14.4

14.5

Institutional Arrangements

Federal Laws Relevant for Environmental Protection

612

614

14.6 Incorporating Environmental Protection Measures into the Land Use Planning and Development Control Processes 619

14.6.1 Land Use Planning or Development Plan Preparation Stage

14.6.2.1 Legal Framework for Environmental Protection in Land Planning and Development 631

14.7 Balancing Land Development and Environmental Protection 633

14.8 Efforts to Integrate Sustainable Development in Land Planning and Development Process 636

14.8.1 Total Planning and Development Doctrine 637

14.8.2 Sustainable Urban Development Indicators 638

14.8.3 Guidelines for Implementing of Planning Legislation 639

14.8.4 Improving Land Planning and Management System 641

14.9 Condusion 644

CHAPTER 15 ISLAMIC PRINCIPLES ON SUSTAINABLE LAND USE PLANNING AND DEVELOPMENT 645


15.2 Sustainable Development Principles 647

15.3 Shari'ah for Regulating Sustainable Development 653

15.3.1 between Man and the Creator 658

Contents

15.3.2 Relationship between 15.7.1 Role of Public in Man and the Promoting Environmental Environment 658 Protection 677

15.3.3 Relationship between 15.7.2 Education and Raising Man and Man 659 Environmental

15.4 Sustainable Development Awareness 677

Institutions in Islam 661 15.8 Manifestation of Religious

15.4.1 Reclamation of Land Values in the Malaysian

662 15.8.1

Land Planning System

Observation of

678

15.4.2 Inviolable Zones 664

Relationship Between Man and the Creator 682

15.4.3 Charitable Endowments 15.8.2 Observation of 664 Relationship between

15.4.4 Leased Lands 665 Man and Man 682 15.4.5 Granting of Titles for

Developing Public 15.8.3 Observation of

Relationship between Lands 665 Man and the

15.5 Administration of Environment 684 Sustainable Development 15.9 Impact of Religious Institutions in Islam 665 Principles and Values

15.5.1 Lawful Acquisition of as Progressing

in Promoting Sustainable Development in Plural

Towards Sustainable Society 686 Development 666 15.10 Condusion 689

15.5.2 Development of Land as a Condition for Appendices 691 Perpetual Ownership 667

15.5.3 What Constitutes Bibliography 819

668 Index 821

15.5.4 Efficient Use of Natural Resources and Avoiding Waste 670

15.5.5 Management of Reserves 671

15.5.6 Water Rights 672

15.6 Good Governance and Sustainable Development in 672

15.7 Sustainable Development Institutions and Social Security 675

MALAYSIAN TOWN AND COUNTRY PLANNING - … · 2.6.5 Sources of Malaysian Law 93 2.6.5.1 Common Law...

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Transcript of MALAYSIAN TOWN AND COUNTRY PLANNING - … · 2.6.5 Sources of Malaysian Law 93 2.6.5.1 Common Law...