conservation of buildings in malaysia with a look at the national heritage act 2005
TRANSCRIPT
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CONSERVATION OF BUILDINGS IN MALAYSIA
WITH A LOOK AT THE
NATIONAL HERITAGE ACT 2005
GOH POI SZE
FAKULTI UNDANG-UNDANG
UNIVERSITI MALAYA
2014/2015
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Conservation of Buildings in Malaysia with a look at the
National Heritage Act 2005
Oleh
GOH POI SZE
Project ilmiah bagi memenuhi sebahagian daripada Syarat-
syarat untuk Ijazah Sarjana Muda Uundang-undang
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ABSTRACT
Heritage buildings are valuable public properties that belong to the whole community. However, rapid urban
development has added pressures to the conservation of these buildings. This paper will discuss the value of heritage
buildings and explain the importance of heritage conservation in urban development. The primary aim of this paper is
to identify how National Heritage Act 2005 (NHA) can respond to the problems faced in heritage conservation. In this
account, the author critically examines the listing system and the legal provisions on development control and
maintenance of the buildings in the heritage area. This paper also shows that the effective conservation of heritage
building does not only encompass the legislative aspect, but there are other factors that are required to ensure
successful implementation and enforcement of the law. Therefore, NHA has to be able to secure sufficient funding for
conservation work and foster good inter-institutional cooperation. The author then examines and compares the laws
on protecting heritage buildings in Malaysia and United Kingdom. The author eventually concludes that NHA is a
comprehensive legislation but she also identifies a need for further improvement. The author then provides some
recommendations for a revision of NHA.
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ACKNOWLEDGEMENT
First of all, I would like to thank my supervisor, Datin Grace Manoranjitham for her valuable comments in guiding me
throughout the research and in writing this project paper.
I am also indebted to Professor Dr. A. Ghafar Ahmad (University of Sains Malaysia) and Mdm. Nurul Majdiah Binti
Mohamad Sayuti (Department of National Heritage), who were willing to contribute their valuable time for the interview and
knowledge in helping the author in the construction of the paper.
In addition, I would express my appreciation to my friend Mr. Vinodhan Kuppusamy for proof reading on my paper.
And last but not least, I thank my family for giving me support when I needed it.
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TABLE OF CONTENTS
Abstract……………………………………………………………………………………………….…iii
Acknowledgement………………………………………………………………………………………iv
List of Statutes………………………………………………………………………………………….vii
List of Cases……………………………………………………………………………………………viii
Chapter 1
1.1 Research Topic………………………………………………………………………………………..1
1.2 Research Background…………………………………………………………………………………1
1.3 Literature Review……………………………………………………………………………………..1
1.4 Research Objective……………………………………………………………………………………2
1.5 Research Question…………………………………………………………………………………….2
1.6 Research Methodology………………………………………………………………………………..3
1.7 Scope and Limitation of Research …………………………………………………………………....3
1.8 Synopsis of Chapters………………………………………………………………………………….3
Chapter 2
2.1 Definition of Important Terms………………………………………………………………………..5
2.2 Problems Faced in Conservation of Buildings in Malaysia…………………………………………..7
2.3 Value of Heritage Building…………………………………………………………………………...8
2.4 Heritage Legislation in Malaysia…………………………………………………………………….11
Chapter 3
3.1 The Institutional Framework provided in National Heritage Act 2005……………………………..14
3.2 Heritage Fund………………………………………………………………………………………..16
3.3 Heritage Site and National Heritage……………………………………………………………...…16
3.4 Development Control……………………………………………………………………………......18
3.5 Management of Heritage Building…………………………………………………………………..21
3.6 Public Participation in Heritage Conservation…………………………………………….………...26
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Chapter 4
4.1 Listing System……………………………………………………………………………………….28
4.2 Development Control………………………………………………………………………………..34
4.3 Management of Heritage Building…………………………………………………………………..38
Chapter 5 Conclusion
5.1 Adequacy of National Heritage Act 2005…………………………………………………………...42
5.2 Author’s Final Note …………………………………………………………………………………43
Bibliography……………………………………………………………………………………………..ix
Appendix………………………………………………………………………………………….........xiii
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LIST OF STATUTES
Malaysian Statutes
1. Antiquities Act 1976 (Act 168)
2. Federal Constitution
3. Federal Territory Planning Act 1982 (Act 267)
4. Interpretation Acts 1948 & 1967 (Act 388)
5. Johore Enactment No.7 1988
6. National Heritage Act 2005 (Act 645)
7. National Land Code 1965 (Act 56)
8. Penang Heritage Enactment 2011
9. Sarawak Cultural Heritage Ordinance 1993
10. Town and Country Planning Act 1976 (Act 172)
11. Urban Development Corporation Act 1971 (Act 46)
United Kingdom Statutes
1. Antiquities Ordinance 1951
2. Enterprise and Regulatory Reform Act 2013
3. National Heritage Act 1983
4. Planning (Listed Buildings and Conservation Areas) Act 1990
5. Planning (Listed Buildings and Conservation Areas) Regulation 1990.
6. Town and Country Planning (General Permitted Development) Order 1995
7. Town and Country Planning 1970
8. Town and Country Planning Act 1995 (Revised) (Act A933)
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LIST OF CASES
1. Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418
2. Barnwell v East Northamptonshire DC [2014] EWCA Civ 137
3. Bath Society v Secretary of State for the Environment and Hammercrest Developments Ltd [1991]
1 W.L.R. 1303
4. Chu Hoi Dick and Ho Loy v Secretary for Home Affairs HCAL 87/2007
5. Debenhams PLC v Westminster City Council [1987] A.C. 396
6. Dupont Steel v Sirs [1980] 1 WLR 142
7. Iveagh v the Minister of Housing and Local Government [1964] 1 Q.B. 395
8. Lakin Ltd v Secretary of State for Scotland [1988] SLT 780
9. Pang Soo v Tong Ah Company Sdn Bhd [2010] 2 CLJ 482
10. R (Bankcroft) v Secretary of State [2005] JPL 144
11. R v London Borough of Camden ex p Comyn Ching and Co [1983] 47 P. & C.R.
12. R v Secretary of States ex p Newprop [1983] J.P.L 386
13. Ridge v Baldwin [1964] AC 40
14. S Kulasingham & Anor v Commissioner of Lands, Federal Territories & Ors [1982] 1 MLJ 204
15. Shimizu (UK) Limited v Westminster City Council [1996] 3 P.L.R. 89
16. South Lakeland DC v Secretary of State for the Environment and Halpin [1993] J.P.L. 644
17. The Mayor and Burgeses of the London Borough of Harrow v Secretary of State for the
Environment [1991] J.P.L. 137
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CHAPTER 1
INTRODUCTION
1.1 Research Topic
Conservation of buildings in Malaysia with a look at the National Heritage Act 2005
1.2 Research Background
Even though Malaysia is a young nation attaining independence only in the year of 1957,
Malaysia has a great diversity of heritage buildings from the era of Sultanate and colonial period. The
influence of the history can be seen in major cities like Malacca, Penang and Kuala Lumpur where
landmark buildings are dominated by distinctive traditional Malay, Chinese, Indians and colonial
architecture.
In the past hundreds of years, these urban settlements have transformed from strategic trading
ports or centers of tin-mining activity to the fastest growing metropolitan areas in Asia. Due to rapid
economic growth and drastic increase of population, urbanization process has been substantially
speeded up. The fast expansion of the cities presents a threat to heritage buildings in urban areas. Many
historical buildings have been sacrificed for the sake of giving way to new development. National
Heritage Act 2005 (Act 645) was thereafter a response to the threat in order to safeguard Malaysia’s
heritage buildings from being demolished or neglected.
1.3 Literature Review
In “National Heritage Act, 2005: A Review”1, Yuszaidy Mohd Yusoff, Hanapi Dollah and AB
Samad Kechot touched on the development of conservation laws in Malaysia prior to the enforcement
of National Heritage Act 2005 (NHA). They found that Antiquities Ordinance 1951 introduced by the
British was only to protect the interest of the British administration. Post-independence, Antiquities Act
1957 (Act 168) was enacted. However, the weakness of the legislation is evident because the
enforcement of the law is subjected to the will of the respective state and local authority. Thereafter, 9th
Schedule of the Federal Constitution was amended to include “preservation of heritage” in the
Concurrent List. This research paper will extend on the discussion of the effect of the amendment in
relation to the application of the law in NHA.
1 Yuszaidy Mohd Yusoff, Hanapi Dollah and AB Samad Kechot, “National Heritage Act, 2005: A Review”, [2011] 8 Jurnal Melayu 173-188
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Nurulhuda Adabiah Mustafa and Nuraisyah Chua Abdullah’s article “Preservation of Cultural
Heritage in Malaysia: An Insight of the National Heritage Act 2005”2 is definitely not to be taken lightly
as it provides a summary of the role of the Commissioner of Cultural Heritage in the Act. This research
paper will discuss the provisions in NHA in detail and their legal implications in respect of the
responsibility of the Commissioner for registering and maintaining the heritage buildings.
These two articles provide a balanced understanding on the strength and weakness of the NHA.
However, it is important to note that these articles were discussed primarily on the role of the authorities,
leaving another stakeholder: owner of the building undiscussed. Further, discussion on the funding
mechanism of heritage conservation is necessary.
1.4 Research Objective
This research paper aims to evaluate the adequacy of the National Heritage Act 2005 in
conserving heritage building in light of the pressure of economic development and urbanization in
Malaysia. The objectives are as following:
1. To appreciate the significance of heritage buildings in Malaysia.
2. To examine the scope and applicability of National Heritage Act 2005 and its weaknesses.
3. To compare Malaysia and United Kingdom on the aspects of legal framework employed in
heritage building conservation.
4. To make suggestion after examining National Heritage Act 2005 and the practice of built
heritage conservation in United Kingdom.
1.5 Research Question
In relation to the research objective, the author will answer the following question:
1. What is the significance of heritage buildings as weighed against urban development in
Malaysia?
2. Is the National Heritage Act 2005 adequate to conserve heritage buildings in Malaysia?
3. What are the current limitations of the National Heritage Act 2005?
4. If there are limitation, what suggestions are necessary for effective conservation of heritage
buildings?
2 Nurulhuda Adabiah Mustafa and Nuraisyah Chua Abdullah, “Preservation of Cultural Heritage in Malaysia: An Insight of the National Heritage Act 2005’, Proceedings of International Conference on Tourism Development, February, 2013. 407-415
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1.6 Research Methodology
This research paper adopts 3 types of research methods.
1. Library based research focusing on materials such as books, journals, articles, thesis papers
as well as legislations and case law.
2. Internet based resources including government publications, Non-governmental
Organization (NGO) websites and archived news will be included in this research.
3. Interviews are conducted to collect information.
Mdm. Nurul Majdiah Binti Mohamad Sayuti- Legal Officer from Department of
National Heritage.
Professor Dr. A. Ghafar Ahmad- Deputy Commissioner of Heritage from 2009
until 2012 and currently a lecturer at School of Housing, Building and Planning of
Universiti Sains Malaysia.
1.7 Scope and Limitation of Research
This research paper focuses on the NHA, the specific statute on conservation of heritage
buildings. Therefore, legislations such as Local Government Act 1976 (Act 171), Town and Country
Planning Act 1976 (Act 172) and others3 will not be discussed extensively, but only to the extent on
how they complement NHA. The study also extends to find out the differences and similarities between
Malaysia and United Kingdom in heritage conservation so as to provide recommendation for future
conservation practices.
The limitation in this research covers situations where there are no cases that have been heard
in Malaysian court on issues of conservation of heritage building under NHA. This poses an obstacle
to my understanding of the court’s interpretation of the Act. Secondly, reference materials on the
comparison between Malaysia and United Kingdom conservation laws are scarce.
3 Urban Development Corporation Act 1971 (Act 46), Federal Territory Planning Act 1982 (Act 267), Town and Country Planning Act 1995 (Revised) (Act A933), Melaka Enactment No.6 1998 and Johore Enactment No.7 1988.
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1.8 Synopsis of Chapters
Chapter 1 Introduction- This chapter will provides the research topic, research background, literature
review, research objectives, research questions, research methodology, scope and limitation of research.
Chapter 2 Significance of Heritage Building- The author will explain the meaning of building,
conservation and urban development. Then, this chapter will discuss about the value of heritage building
in urban development, problems faced in conservation of buildings and an overview of heritage
legislation in Malaysia.
Chapter 3 Scope and Applicability of National Heritage Act 2005- This chapter will explore the
important provisions in the National Heritage Act 2005 (NHA).
Chapter 4 The United Kingdom Experience: Comparison and Application in Malaysia - This chapter
will scrutinize the legal framework in United Kingdom, evaluate the differences in legal practice and
discuss if Malaysia can learn from United Kingdom to improve our system of built heritage conservation.
Chapter 5 Conclusion- This chapter will conclude the findings in this research paper.
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CHAPTER 2
SIGNIFICANCE OF HERITAGE BUILDINGS
2.1 Definition of Important Terms
The preamble of National Heritage Act 2005 (NHA) is self-evident in defining the purpose of
the legislation: “An Act to provide for the conservation and preservation of National Heritage, natural
heritage, tangible and intangible cultural heritage, underwater cultural heritage, treasure trove and for
related matters.” For the purpose of this paper, the author will focus only on conservation of buildings.
Cultural Heritage
According to Section 2 of NHA, cultural heritage comprises cultural property, structure, or
artefact that is pertinent to historical or contemporary way of life of Malaysians. It is classified into 2
groups: tangible or intangible. Tangible cultural heritage refers to heritage that is manifested through
physical forms while intangible heritage is pertaining to cultural traditions or living expressions that is
transmitted through oral traditions and performing arts.
From the legal point of view, every building is thus, a tangible cultural heritage as long as it
has associations linked to the life of Malaysian community. This loose nature of the definition allows
cultural heritage to encompass almost every building in Malaysia because buildings are directly
incorporated into urban space and hence necessarily plays an active part in the life of Malaysian either
from the past or the present within it. However, it is theoretically and practically impossible to conserve
all buildings, therefore, the latter provisions of NHA provide the methodology to decide what buildings
should be conserved and which should be free to be demolished.
Building
“Building4” is defined as “a building or groups of separate or connected buildings which
because of their architecture, their homogeneity or their place in the landscape, are of outstanding
4 Land is defined in Section 5 of the National Land Code 1965 to include all things attached to the earth or permanently fastened to any thing attached to the earth, whether on or below the surface. Thus, though NHA does not provide a definitional provision like Section 1(5)(a) of the United Kingdom’s Planning (Listed Buildings and Conservation Areas) Act 1990 that includes fixtures as part of a building, arguably, a building covers any objects or structures fixed to the building. The UK case of Debenhams PLC v Westminster City Council [1987] A.C. 396 held that the court will apply the same test in property law to determine whether or not any item is “fixed” in heritage matters. Subsequently, structures that are “chattels” are not part of the listed building. The UK law in Section 1(5)(b) go even further to include “any objects or structures within the curtilage of such a building which, although not fixed to it, form part of the land and have done so since before 1 July 1948”. This aspect is outside of the purview of our heritage law. Thus, the author do not know whether the listed building protection also extends to structures within the area of land surrounding the building. That being said, the definition of “Heritage Site” designated under Section 24 may cover “land with building”. Further, the Commissioner can always designate
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universal value from the point of view of history, art or science5. The author would like to highlight an
issue with regards to the definition. The definition seems to suggest that a building has to be of
outstanding universal value (OUV) to render the building within the definition of NHA.
This section resembles the definition of “building” in Article 1 of UNESCO Convention
Concerning the Protection of the World Cultural and Natural Heritage (Convention). The Convention
requires buildings to fulfill two criteria to be qualified as World Heritage Site6.
However, NHA is silent as to such precondition for an inscription. In point of fact, a building
is gazetted as Heritage Site or National Heritage in Malaysia pursuant to criteria set out in Section 24
and Section 67(2) respectively. In spite of that, the author views that conservation of heritage buildings
based on OUV established by UNESCO is useful to ensure that our conservation practice is in consistent
with the international standard.
Conservation
The definition of conservation is provided in Section 2 to include preservation, restoration,
reconstruction, rehabilitation and adaption or any combination. The meaning of each methods are well
defined in the same section7.
In essence, conservation of buildings means the actions taken to conserve the cultural
significance of a building8. It adopts approaches to prevent the deterioration of a buildings and prolong
the life of a building as well as its current and future utilization9. As a whole, the author finds that NHA
has provided a decent definition of conservation to cover a comprehensive list of skillful practices and
explanations to deal with buildings.
adjacent land as Heritage Site pursuant to Section 25(1) of National Heritage Act 2005. Therefore, from the legal point of view, the protection of listed building in Malaysia may extend to include structures within the area surrounding the building. 5 Section 2 of National Heritage Act 2005 6 The buildings must: (1) be of OUV and (2) meet at least one out of ten selection criteria in the Operational Guidelines for the implementation of the World Heritage Convention. 7 The author finds that “maintenance” is laid down under the definition of “preservation”, the technique is restricted to the effect that “it does not change or adversely affect the fabric or historic appearance of a structure”. At the same time, the technique of “maintenance” are also provided together with other conservation methods in other provisions. For instance, in Section 6(c), the section provides that “the functions of the Commissioner are to supervise and oversee the conservation, preservation, restoration, maintenance… and accessibility of heritage.” Having the term “maintenance” undefined, the author is curious as to whether the two terms denote different meanings, especially when “preservation” and “maintenance” are included in the very same section. Although the legal implication of such confusion is likely to be immaterial, such arrangement of the wordings of the law makes NHA a relatively messy legislation. 8 Article 1.4 of ICOMOS Burra Charter 1999 9 Feilden, Bernard, Conservation of Historic Buildings (London: Butterworth Scientific, 1982), at page 3
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Urban development
“Development” is defined as “the carrying out of any building, engineering, mining, industrial,
or other similar operation in, on, over, or under land, the making of any material change in the use of
any land or building or any part thereof”10.
To put it in context of this paper, urban development means the development in a gazetted area
with their adjoining built areas that have a combined population of 10,000 and more by the act of
construction. The author finds that the definition has put aside the social and cultural aspect of urban
life.
2.2 Problems faced in Conservation of Buildings in Malaysia
Professor Dr. A. Ghafar Ahmad has provided the author an analysis of main problems faced in
conservation of buildings in Malaysia.
Urban Development
As a developing country, cities in Malaysia are investing extensively in development of
physical infrastructures. This is because:
(a) Physical infrastructures are requisite to economic growth11
(b) Rapid growth of urban population since the 1990s12.
Land resource is limited in the city, thus, government has to rapidly expand the cities to
accommodate the growing population and sustain the development rate13. Many heritage buildings in
Malaysia are located at prime areas. The direct result is therefore the sacrifice of heritage buildings.
The government supported the clearing out of old structures to create space for development
i.e. creation or widening of roads to accommodate increased traffic, constructions of office buildings,
10 Section 2 of Town and Country Planning Act 1976 11 Lee, Cassey, “Infrastructure and Economic Development”, (2011) Lee, C. (2011). Malaysia: Policies and Issues in Economic 423-436, at page 433 12 The World Bank, 5 June 2015 < http://data.worldbank.org/indicator/SP.URB.TOTL.IN.ZS> 13 Shahrul Yani Said, Hasnizan Aksah and Elma Dewiyana Ismail, “Heritage Conservation and Regeneration of Historic Areas in Malaysia”, (2013) 105 Procedia Social and Behavioral Sciences 418-428, at page 420
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carparks, residential areas and etc. For instance, the government has authorized the demolishment of
Plaza Warisan and the Ocean Uda building in Jalan Sultan14 to construct a MRT project15.
On the other hand, heritage buildings that belong to private owners are susceptible to
uncontrolled reconstruction and demolition because property owners of heritage buildings are
redeveloping their properties in order to meet the greatest possible economic returns.
Lack of Expertise in Conservation Works
Heritage building conservation requires specific expertise and skills because it involves special
knowledge on the building material, appropriate choice of tools, conservation techniques and designing
in old settings16, just to name a few. The lack of experienced conservation experts in Malaysia17 exposes
heritage building to risk of damages if conservation projects fail to conform to acceptable conservation
standards.
Lack of Funding
Heritage buildings have to receive regular maintenance. Therefore, adequate funding is
necessary. Cultural heritage conservation has always been a low priority for the government of
Malaysia18. Thus, federal funding for conservation of buildings is very much limited. In spite of that,
the duty of the government to protect heritage building has intensified over the years because the
number of heritage buildings that require repairs are constantly increasing.
Another key issue is that many heritage buildings are in the hands of private owners. Private
owners, due to absence of public finance, are in a way forced to leave their heritage buildings in a
dilapidated state19.
14 The author noted that the area in question, Jalan Sultan and Jalan Petaling in Kuala Lumpur is not designated as “Heritage Site” under the Act as to date and therefore the protection of NHA cannot be extended here. 15 Woon, Leven, “A Great Wall to Preserve Jalan Sultan”, FMT News, 2 February 2013, 5 June 2015 http://www.freemalaysiatoday.com/category/nation/2013/02/02/a-great-wall-to-preserve-jalan-sultan/ 16 S.N. Harun, “Heritage Building Conservation in Malaysia: Experience and Challenges”, (2011) 20 Procedia Engineering 41-53, at page 53 17 Nurul Hamiruddin Salleh, “Architectural Heritage Conservation in Malaysia: Recognition and Challenges”, Heritage Study of Muslim World, Ali Raza Soomro, (Selangor: IIUM Press, 2011), 73-82 at page 80 18 Abdul Ghafar Ahmad, “Cultural Heritage of Southeast Asia: Preservation for World Recognition”, (2006) 3 Journal of Malaysia Town Plan 52-62 at page 54 19 R. Abdul Rashid, A.G. Ahmad, “Overview of Maintenance Approaches of Historical Buildings in Kuala Lumpur- A Current Practice, Procedia Engineering 20 (2011) 425-434 at page 426
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2.3 Value of Heritage Building
“Heritage is recognized as something that permeates daily life, bringing a sense of meaning
and identity to an increasingly dislocated world. Heritage is, by its very definition, what people value.”
-Submission to the Productivity Commission to Australia ICOMOS 2005
There is a growing concern among Malaysians with regards to heritage conservation. As a result,
government’s decision to demolish heritage landmarks invoke strong momentum of public outcry. The
public has expressed strong disapproval over demolition of old buildings of Bukit Bintang Girls’ School,
Bukit Bintang in 200120, Bok House, Jalan Ampang in 2006 and Khaw Sim Bee Bungalow, Penang in
201021. Recently, public protests were held over a development proposal of Vivekananda Ashram
building in Brickfields22.
Historical and Cultural Value
Heritage buildings represent a place’s history and culture. The three centuries of colonial rule
in Malaysia is still apparent today by the presence of unique colonial architectural styles23. The buildings
become a medium that explains its origin or influence, creating an appreciation of history of the nation.
A heritage building also provides a representation of a society’s cultural identity at that particular time
by uncovering aspects of daily life through the observation and assessment of heritage buildings24.
Hence, heritage buildings help in answering fundamental questions of our identity, roots and
destiny. The contribution of heritage building to educational development in also undeniable because it
is a tangible evidence for research regarding our history and culture.
20Tan Sri Ahmad Sarji Abdul Hamid, “Enforce laws to ensure protection of heritage buildings”, New Straits Times, 5 September 2001, 5 June 2015 https://news.google.com/newspapers?nid=1309&dat=20010905&id=3KktAAAAIBAJ&sjid=jXgFAAAAIBAJ&pg=4371,3068372&hl=en 21 “Cramped by Development, Penang Residents Oppose New Condo Project”, The Malaysian Insider, 11 March 2015, 5 June 2015 https://sg.news.yahoo.com/cramped-development-penang-residents-oppose-condo-project-122415268.html However, this demolition is not a decision made by the government, it is done illegally without MPPP’s council permit. 22 Bavani M, “Treasuring Our History”, The Star Online, 1 January 2015, 5 June 2015 http://m.thestar.com.my/story.aspx?hl=Treasuring+our+history&sec=news&id=%7B8B89B328-A334-4433-AB53-E80D92F0BF29%7D 23 For example, Sultan Abdul Samad Building, KTM Railway Station and KTM Administration Office in Kuala Lumpur were built at the turn of the 20th century by the British. 24 For instance, in the city of Melaka, Cheng Hoon Teng Temple, Masjid Kampong Kling and the Sri Poyyatha Vinayagar Morthi Temple were built in close proximity to each other. This is a proof of unity and a harmonious lifestyle the society practices in Malaysia.
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Social Value
Heritage building can tell a memory through a tangible links to the past that allow us to
understand people, events and values of the past25. An emotional reaction arises when we see such a
place of memorable significance that tells us our collective social roots. Thus, heritage buildings help
foster a “sense of community” and consolidate our nationhood.
Society’s pluralism is a unique characteristic of our community. This background is an
important consideration when we talk about conservation of cultural heritage. Conservation of heritage
buildings is important to keep our roots and identity as people of different origins26. In fact, the
Malaysian government finds conservation of diverse cultural identity an important part in forming a
unique Malaysian identity27.
Economic Value
According to Joy Lee’s article “There’s money in history”28, economic benefit is a direct benefit
of conservation of heritage buildings. Firstly, heritage conservation circumvent wasteful process of
demolition and reconstruction because rehabilitation, restoration and adaptive reuse can convert a
vacant and underused heritage building to fulfill a new purpose for the society29.
According to a research quoted in the article, the average cost of a large commercial
rehabilitation would be about 4% lower than comparable new construction on a clear site. Therefore,
economically, it should be more preferable to save a building instead of demolishing it.
Revitalizing heritage building and converting them to tourists’ spot can create economic value
in the area. Heritage buildings with cultural uniqueness, historical and architectural values attract
tourists to visit30. As heritage tourism grows and visitors spend money within the heritage areas, heritage
25 To illustrate this, the author takes the example of Stadium Merdeka in Kuala Lumpur where our first Prime Minister Tunku Abdul Rahman Putra declared our nation’s independence from British in the morning of 31 August 1957. 26 Therefore, Leong San Tong Khoo Kongsi Temple in Penang, Sri Mahamariamman Temple in Kuala Lumpur and Pinang Peranakan Mansion in Penang should be conserved as an appreciation and respect of the culture of various ethnic groups in Malaysia. 27 Ninth Malaysia Plan 2006-2010 28 Lee, Joy, “There’s Money in History”, The Star Online, 21 August 2013, 5 June 2015 http://www.thestar.com.my/News/Community/2013/08/21/Theres-money-in-history-Rejuvenating-the-countrys-heritage-buildings-makes-economic-sense/ 29 For example, in 1981, being saved from demolition, Central Market in Kuala Lumpur which was originally a wet market was restored into a handicraft and cultural center. 30 Melaka and Georgetown attracts many visitors each year since they were recognized as a World Heritage Site.
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conservation supports job creation, stimulates local entrepreneurial activity and increases tax bases.
Tourism industry generates a significant tourism revenue to Malaysia.
The Role of Heritage Buildings in Urban Development
“A good city is a delicate balance between hope and memory. It must provide reassurance that
a better world is possible in the future, while simultaneously respecting everything from the past that
nourishes roots and identity. Therefore, it must change, and it must remain the same.”
-Robert Campbell31.
It is important to emphasize that conservation and development are not mutually exclusive32.
This is especially true in cities that are saturated with heritage building, conservation ensures that
development is in harmony with the existing buildings. Therefore, although a city must move forward
in response to contemporary needs, some historic buildings can be conserved as a permanent image of
the city. A balanced approach can be achieved by (1) properly assess which building to conserve; and
(2) apply the appropriate methods of conservation.
To conclude, the author views that urban development improve quality of life in economic, as
well social and cultural aspects. Conservation of heritage buildings embraces all the characters.
2.4 Heritage Legislation in Malaysia
Prior to 2005, “preservation of heritage” was neither in the federal list nor state list33 of the
Federal Constitution. Many states enacted their own heritage law34 whilst multiple local governments
set up heritage conservation guidelines35 even though Act 168 was in force. The enactments and
31 Campbell, Robet, “Boston: A Private City Goes Public”, (1983) Boston Globe A24 32 Khairul Khalid, “Profiting from history”, New Straits Time, 15 June 2012, 5 June 2015 http://repository.um.edu.my/25672/1/Ref%20Profit%20History.pdf 33 However, both federal and state government have the power to control museums, monuments and archaeological sites according to Item 13 of First List and Item 12A of Second List in Ninth Schedule of Federal Constitution. Issues of conservation of heritage buildings are also usually related to “land” and “town and country planning” because it regulates activities such as excavation, earthwork and alteration of structure that may damage heritage buildings. “Land” is in the state list while “town and country planning” appears on the concurrent list. 34 There are four legislations that are applicable in certain states in Malaysia, namely Federal Territory Act 1982 (Act 267), Preservation and Conservation of Cultural Heritage of Melaka Enactment 1988, Johore Enactment No.7 1988, Sarawak Cultural Heritage Ordinance 1993 and Penang Heritage Enactment 2011. 35 There are four local authorities that have conservation guidelines: Municipal Council of Penang Island (MPPP), Kuala Lumpur City Hall (DBKL), Melaka Historical City Council (MBMB) and Taiping Municipal Council (DBKL)
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guidelines are inconsistent, incomplete and uncomprehensive36. Secondly, federal government has
limited power because Act 168 requires the occurrence of the State Authority in order to list any
monument or site37. To overcome the problem, the Ninth Schedule was amended38. The parliament
included “preservation of heritage” in the concurrent list. Thus, the federal and state governments have
equal share of responsibility towards the conservation of heritage buildings.
Following the amendment, National Heritage Act 2005 was passed by the Parliament 39 .
Consequently, heritage buildings listed in NHA are governed by the federal law while heritage buildings
registered under the state law and local governments’ guideline remain in the state’s jurisdiction.
Joint jurisdiction allows federal and state governments to cooperate, consult each other and
pool up resources. This is important because effective conservation requires adequate finance and
technical expertise. Most importantly, concurrent jurisdiction over heritage issues will deny federal
government from neglecting their responsibility to conserve heritage building in instances of inaction
of the state government.
Commentaries
The author is skeptical of the federal government’s effort in pushing for the uniformity of laws
and standards in Malaysia. To illustrate40, Malacca Enactment No. 6 of 1988 that governs conservation
of cultural heritage in Melaka provides a penalty of maximum fine of RM10, 000 if any person fail to
obtain planning permission from the local authority prior to demolition of a listed building. But, for a
similar offence, NHA imposes a maximum fine of RM50, 00041.
Furthermore, jurisdiction issue is still problematic because NHA also requires consent of the
statue authority if the land concerned is situated in a state.
However, the author agrees that the urgency to conserve a heritage building does not justify the
autonomous exercise of federal power. State authority should be adequately consulted and involved in
36 Yuszaidy Mohd Yusoff, Hanapi Dollah and Ab Samad Kechot, op. cit., 180. 37 Section 15(1) of Antiquities Act 1976 38 Nurulhuda Adabiah Mustafa, Nuraisyah Chua Abdullah, op. cit., 410. 39 National Heritage Act 2005 received Royal Assent on 30 December 2005 and was gazetted on 31st December 2005 and came into force on 1 March 2006. It is applicable throughout whole Malaysia. It is a comprehensive legal document that contains definition of terms, description of duties and powers, appeal options and sections. 40 Another example of inconsistency is in relation to the definition of monument. In Sarawak Cultural Heritage Ordinance 1993, Section 20(1) (a) allows Director to register buildings in Sarawak which were built before the year of 1940. However, in National Heritage Act 2005, the age of the buildings is not a criteria to registration. 41 Section 112 and Section 114 of National Heritage Act 2005
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heritage conservation because the state government is primarily responsible for general policies in
respect of planning, development and use of all land and buildings. This argument is further
strengthened by the fact that heritage issues are local in nature. State and local authorities which are in
touch with the real situation will provide details that will enhance the applicability of federal
conservation laws.
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CHAPTER 3
SCOPE AND APPLICABILITY OF National Heritage Act 2005
3.1 The Institutional Framework provided in National Heritage Act 2005
Ministry of Tourism and Culture
The Ministry of Tourism and Culture is in charge of heritage matters. Therefore, the Minister
in NHA refers to the Minister of the Ministry of Tourism and Culture. The Minister has to issue heritage
policies42, appoint heritage officers43, declare and maintain National Heritage44, determine zones in
Conservation Area45, decide amount of compensation and grants relating to National Heritage46 and
lastly, decide on any appeals made under Section 9647.
Department of National Heritage (Department)48
The Department of National Heritage is the executive arm for heritage conservation in Malaysia
and is responsible to implement and enforce the provisions under the NHA.
State Authority
NHA gives the State Authority an overriding power over the Minister and the Commissioner
in conservation of heritage building if the building is situated in a State. The Commissioner requires
State Authority consent in inspecting land49, designating Heritage Site50 and making Interim Protection
42 Section 3 of National Heritage Act 2005. The interview with the Mdm. Nurul Majdiah has revealed that up until now, the Minister has yet exercise his power under this section. 43 Heritage officers including Commissioner of Heritage, Deputy Commissioner, Assistant Commissioners, authorized officers to assist the Commissioner, chairman and members in National Heritage Council and lastly, enforcement officers. Parliamentary Debates, Representative, Eleventh Parliament, Second Session, Second Meeting, 7 December 2005, (Datuk Seri Utama Dr. Rais Yatim) at page 66: “Semestinya seseorang pesuruhjaya warisan mempunyai sifat-sifat ketinggian ilmu mengenai warisan pelbagai jenis and sentiasa mementingkan keutuhan serta nilai tinggi sesuatu warisan itu”. 44 Section 67(1), Section 67(9) and Section 72(1) of National Heritage Act 2005 45 Section 45(3) of National Heritage Act 2005 46 Section 38(5), Section 39(5), Section 70(3) and Section 72(2) of National Heritage Act 2005 47 Section 92(2) of National Heritage Act 2005 48 The Department was established as a Heritage Division under the Ministry of Culture, Arts and Heritage. On 1 March 2006, it joined together with Antiquities Division from the Department of Museum Malaysia to form Department of National Heritage. 49 Section 26(3) and Section 39(1) of National Heritage Act 2005 50 Section 30 of National Heritage Act 2005
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Order51. Mdm. Nurul Majdiah and Prof Dr. A. Ghafar Ahmad told the author that there are times when
State Authority refuses to give consent52. This restricts the applicability of NHA53.
Other than that, the State Authority has to be consulted when the Minister issues heritage
policies54 and declares National Heritage55. The Commissioner also has to consult and co-ordinate with
the State Authority in managing Heritage Sites56.
Local Authority
Local authority has the control over planning of development and the use of lands and buildings
within its area57. On top of that, it is conferred with the power to make rules and by laws to conserve
heritage buildings58. Accordingly, heritage conservation is integrated with urban planning in Malaysia.
It is understandable to find contradictions between the interest of the Department and the authority. The
authority might care more about urban development, while the Department may consider urban
conservation more important. A constructive contribution of NHA is to allow collaboration between
Department and local planning authority59.
51 Section 33(1) of National Heritage Act 2005 52 This is because once a heritage building is listed in the federal list, the state authority’s right to develop the heritage building cedes and the Commissioner will take control of the management of the building. 53 However, it is crucial to understand that although a building is not listed in National Heritage Act 2005, it may still be protected and managed by state legislation and local government’s guideline. However, the author has to point out that the effort of a state to conserve heritage building is now dependent on the political will of a state government, be it for political, economic or social reasons. Therefore, states like Penang and Melaka may embrace the obligation of actively conserving building so as to comply with the requirement ascribed to safeguard UNESCO status, but such consideration may be less influential in other states. 54 Section 3(2) of National Heritage Act 2005 55 Section 67(3) of National Heritage Act 2005 56 Section 38(1) and Section 46(2) of National Heritage Act 2005. The Commissioner has to consult the State Authority to make arrangements for the care of Heritage Site. In relation to conservation management plan, the Commissioner has to submit the plan, advice and co-ordinate with the State Authority for the implementation of the conservation management plan and guidelines. 57 Section 6(1) Town and Country Planning Act 1976 58 Section 101(1)(c)(iv) and Section 102(f) of Local Government Act 1976; Section 58(1)(f) of Town and Country Planning Act 1976 59 Section 32, Section 40(1) and Section 46(1) of National Heritage Act 2005
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3.2 Heritage Fund (Fund) 60
NHA set up Heritage Fund61 to allow federal government to specifically channel fund and
resources in allowing the Department to carry out its function62. Professor Dr. A. Ghafar Ahmad and
Mdm Nurul Majdiah told the author that the allocation comes in the form of RM30, 00000 revolving
fund63. As such, funding will always remain available to finance the Department. Besides than sum
appropriated by Parliament64, the Commissioner may obtain funding from other sources as provided in
Section 20(3)65.
The Commissioner is responsible to manage the Fund66.Mdm Nurul Majdiah said that the
Department has only receive fund from the Consolidated Fund and donations67. As a whole, the author
finds that the provision provides the Commissioner with different sources of funding.
3.3 Heritage Site and National Heritage
Listed heritage buildings are classified into Heritage Site and National Heritage. Section 24
requires the Commissioner to declare heritage buildings of “cultural heritage significance68” a “Heritage
60 It is important to acknowledge that National Heritage Act 2005 only covers the funding mechanism of listed buildings. Secondly, according to the interview with Mdm Nurul Mahdiah, Department of National Heritage receives funding from the federal government through allocation in Malaysian Annual Budget and Heritage Fund. For the purpose of this paper, the author only discusses the latter. The author views that federal listing is the most efficient way for comprehensive conservation and preservation of a heritage property because it has continuous funding from the federal government. Other possible ways for private owner to obtain funding include state grant or loan, private donation and Heritage Trust grant or loan. 61 Section 20(1) of National Heritage Act 2005 62 Parliamentary Debates, Representative, Eleventh Parliament, Second Session, Second Meeting, 7 December 2005, (Datuk Dr. Haji Wan Junaidi bin Tuanu Jaafar) at page 71 63 Interview with Prof Dr A Ghafar Ahmad from University Sains Malaysia on 23 March 2015. 64 Section 21(3)(a) of National Heritage Act 2005 65 The author will like to point out that although Section 20(3)(c) of National Heritage Act 2005 allows Heritage Fund to get money from levy imposed under National Heritage Act 2005, this Act only introduce one kind of levy, namely entrance fee to Heritage Site pursuant to Section 44(2). Further, deriving income from investment can only be possible if the Department has excess of cash. Thus, arguably, Heritage Fund is still highly dependent on the allocation of public fund. An example of payment to the Fund under Section 20(3)(h) will be rent collected from the lease of Heritage Site under Section 38(1). 66 Section 20(2) of National Heritage Act 2005 67 Section 20(3)(a) and Section 20(3)(b) of National Heritage Act 2005 68 Section 3 of National Heritage Act 2005. The Commissioner will consider the ten characteristics in designating Heritage Site: aesthetic, archaeological, architectural, cultural, historical, scientific, social, spiritual, linguistic or technological value. Cultural significance of a building is normally reflected in its design, style, construction, background and understanding of its association with people or specific events. To illustrate, Stadium Merdeka was listed as National Heritage because it was a place that held important event- the declaration of Independence Day in Malaysia. Another example is Stadhuys Building in Melaka, it is a Dutch heritage building that illuminates historic and aesthetical value.
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Site”. Corresponding to the definition of “site”69, “Heritage Site” covers any area70, place or building
attached to land and any land with building71. The Commissioner may also designate a site that has no
cultural heritage significance but is proximate to a Heritage Site72 for the protection and enhancement
of the original designated site73.
On the other hand, Section 67(1) allows the Minister to declare “Heritage Site” that falls within
Section 67(2)74 as “National Heritage”.
Consequently, “cultural heritage significance” and Section 67(2)75 becomes the guideline for
the selection of valuable heritage buildings to conserve.
It appears that the two sets of criteria should outline their differences. However, although the
definition of “cultural heritage significance” is relatively general as compared to the criteria in Section
67(2), the author finds that the wordings are still vague and imprecise as to how there are distinctive76.
Mdm. Nurul Majdiah answered the uncertainty in the interview 77 . She said that in practice, the
Commissioner and Council will advise the Minister to declare a “National Heritage” if the building has
69 Section 3 of National Heritage Act 2005 70 Area is defined to include works of man or the combined works of nature and man which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view in Section 3 of National Heritage Act 2005. 71 Definition of “site”: Section 3 of National Heritage Act 2005 72 Section 25(1) of National Heritage Act 2005 73 The author will like to highlight that in Antiquities Act 1976, the statute only conserve building individual unit without putting concern on the surrounding environment. Therefore, with regards to this aspect, NHA is more progressive in conservation of heritage building. 74 The criteria to declare National Heritage are in essence identical to those governing the inclusion in the Heritage List. However, in addition to that, the Minister has consider the potential to educate and provide scientific investigation, the importance in exhibiting richness or unusual integration of features, rarity or uniqueness, representative nature of a site. Not only that, Section 67(2)(i) of National Heritage Act 2005 provides wide discretion to the Minister. He may declare buildings which are significant but do not fall within any of the above criteria. 75 Section 67(2) of National Heritage Act 2005. In making a declaration under subsection (1) the Minister may consider- (a) the historical importance, association with or relationship to Malaysian history (b) the good design or aesthetic characteristics (c) the scientific or technical innovations or achievements (d) the social or cultural associations (e) the potential to educate, illustrate or provide further scientific investigation in relation to Malaysian cultural heritage (f) the importance in exhibiting a richness, diversity or unusual integration of features (g) the rarity or uniqueness of the natural heritage, tangible or intangible cultural heritage or underwater cultural heritage (h) the representative nature of a site or object as part of a class or type of site or object (i) any other matter which is relevant to the determination of cultural heritage significance 76 The only distinction is clear in Section 67(2)(a) of National Heritage Act 2005 which delimits historical value to only historical importance to Malaysian history. 77 Interview with Mdm Nurul Majdiah from Department of National Heritage on 11 May 2015.
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cultural significance to the nation as a whole. Hence, in a way, the minister promotes the “Heritage Site”
to a national status.
Deregistration of Listed Building
NHA is silent on the power to deregister a heritage building 78 . Thus, Section 47 of the
Interpretation Act79 may come into place to bring out such effect. The author views that if the building
is damaged and lose its “cultural heritage significance”, the Commissioner or the Minister should allow
deregistration to occur.
3.4 Development Control
Criminal Penalties
Once a heritage building is listed, statutory protection will come into force to conserve its
“cultural heritage significance”. The most effective protection of listed building in NHA is the
prohibition of any works affecting listed buildings without the approval of the Commissioner80.
Any person81 undertaking unauthorized works82 on listed buildings will be prosecuted and be
liable to maximum penalty of imprisonment for a term not exceeding five years or to a fine not
78 The author noted that Section 49(4) of National Heritage Act 2005 allows the Commissioner to revoke a registration of heritage object in the Register. Besides that, although there is no formal application to request that a listed building is delisted in United Kingdom, English Heritage allows applications for de-listing to be made in the same way as listing applications. The applicants has to provide supporting evidence to prove that the building no longer has special architectural or historic interest. This is so because such building does no longer meets the statutory criteria for a building being included on the List. 79 Section 47 of Interpretation Act 1948 and 1967 (Act 388) “Where a power to make an appointment is conferred by any written law, the appointing authority shall also have power (subject to any limitations or qualifications which affect the power of appointment) to remove, suspend, reappoint or re-instate any person appointed in the exercise of the power.” 80 Section 112 and Section 114 of National Heritage Act 2005. It is a criminal offence to execute any works of development of listed building without the approval of the Commissioner. The provision covers a wide range of activities that result in demolition and alteration of the building. Thus, take an example, an extension to a listed building is illegal because it would affect its character of the building. Further, Heritage Site are protected from invasive development that intrudes the harmonious inter0relation of the building and its environment. Activities that cause damage to the adjacent and surrounding land of the Heritage Site are also prohibited. 81 The word “person” is used, therefore, the criminal penalties are aimed at any relevant person, regardless whether he is the owner, tenant, trespasser and visitor. 82 The phrase “without authority” is used in Section 112(2) of National Heritage Act 2005, however, the law is silent to the alternatives of authorization other than consent granted by the Commissioner. The author questions whether development proposals authorized by other Act of Parliament, as the case may be, is possible to circumvent the procedures in National Heritage Act 2005.
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exceeding fifty thousand ringgit or to both83. As of May 2015, the penalty system of NHA 2015 is
untested because no one has been charged in court in relation to these offences84.
The author views that in the context of big development project with lucrative profits, fine
prescribed in NHA seems insignificant85. In such a case, perpetrators may simply offer to pay the fine
and continue the development project. The author feels the urgency to allow Minister to regularly update
the amount prescribed.
Defence of necessity is recognized in respect of offence in relation to National Heritage86, a
perpetrator may justify his act in cases of urgency and immediate necessity for the safety of persons or
property87.
Interim Protection Order (IPO)
NHA provides temporary protection to unlisted buildings after the Commissioner serves a
notice of intention to the owner. An IPO may be issued if the Commissioner finds it necessary to
conserve the site88. A recent example of its application happened when the order was issued to protect
Vivekananda Ashram in Brickfields from immediate threat of demolition while the department
processes its application to gazette the heritage building as a Heritage Site89.
Once the order is served to the owner90, the building faces controls subject to the conditions as
specified by the Commissioner91. Therefore, the building concerned is prohibited from development
work without prior approval of the Commissioner. In order to perform works on the site, any person
83 Section 112(2) of National Heritage Act 2005 84 Therefore, the author is not able to assess how our court will determine the fine to be imposed on a person convicted of an offence under the section. 85 Section 9 (5) of United Kingdom’s Planning (Listed Buildings and Conservation Areas) Act 1990 allows the court when determining the amount of fine to be imposed on a person convicted consider any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence. The author finds this a good guideline to our court to allow a fair assessment on the amount the accused should pay. 86 The absence of provisions of defence of necessity in Section 112 of National Heritage Act 2005 seems to suggest that defence is only applicable in cases of National Heritage but not Heritage Site. However, the author feels that such literal interpretation is absurd and will cause unfairness in enforcement of the law. 87 Section 114(1) of National Heritage Act 2005 88 Section 33(1) of National Heritage Act 2005 89 Bavani M, “Plan to Redevelop Vivekananda Ashram is Put on Hold”, The Star Online, 21 January 2015, 5 June 2015 http://www.thestar.com.my/Metro/Community/2015/01/21/Plan-to-redevelop-Vivekananda-Ashram-is-put-on-hold/ 90 Section 33(4) of National Heritage Act 2005 91 Section 33(2) of National Heritage Act 2005
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affected by the order may apply to the Commissioner92. The Commissioner will assess the application
and approve if the proposed works do not affect the cultural heritage significance of the site93.
The interim protection order lasts for a period of ninety days or for such further period as may
be extended by the Commissioner94. It is a criminal offence to any person who contravenes the Interim
Protection Order95. Section 96(1) (b) allows the owner to appeal against the issuance of the order to the
Minister. The decision of the Minister is final96.
Planning Permission
The Commissioner has to coordinate and advise the local planning authority before any
planning permission or development is granted involving a Heritage Site97. The provision extends to
protect neighboring land of a Heritage Site98. Therefore, NHA does not only conserve individual
buildings but also the vicinity of the protected buildings which may include surrounding buildings and
adjoining streets.
The Commissioner may advice the authority to impose conditions in the planning permission
so that conservation guidelines of National Heritage is followed, restoration work to any damages is
done after development works are completed and the specified feature of the Heritage Site is protected99.
After planning permission is approved, the Commissioner has to coordinate with the authority to
supervise the Heritage Site100. It is an offence to contravene the conditions imposed101.
92 Section 35(1) of National Heritage Act 2005 93 Section 35(2) of National Heritage Act 2005. Section 35(3) allows the Commissioner to impose conditions to the permission. Section 35(4) makes it an offence if the person fails to comply with the conditions imposed. 94 Section 34(1) and Section 34(2) of National Heritage Act 2005 95 Section 33(6) of National Heritage Act 2005 96 Section 96(4) of National Heritage Act 2005 97 Section 40(1) of National Heritage Act 2005 98 Section 40(2)(c) of National Heritage Act 2005 99 Section 40(4) of National Heritage Act 2005 100 Section 40(5) of National Heritage Act 2005 101 Section 40(6) and Section 118 of National Heritage Act 2005
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3.5 Management of Heritage Building
Conservation Area
A Heritage Site automatically becomes a “Conservation Area” after designation and is
conserved according to its conservation management plan102. The minister will determine the buffer
zone and central zone in the Conservation Area with the consultation of the Council103. The buffer zone
includes the area around the Heritage Site, as such, unlisted buildings may also be included.
Conservation Management Plan (CMP)
The Commissioner, in consultation with the Council will prepare a CMP to conserve, manage
and improve the environment of the Conservation Area104. Good conservation policy should ensure the
continual utilization of heritage buildings. CMP provides a holistic conservation approach because it
requires the Commissioner to look into the land usage, traffic management and economic programs for
the protection of the Heritage Site. CMP also contains schemes to assist owners 105 and promote
community involvement in decision making106.
The Commissioner is required to submit the CMP to the State Authority or the relevant local
planning authority, advice and coordinate with them for the implementation of the CMP107. The author
finds CMP a proactive conservation method because revision of the plan is required from time to time108.
National Heritage
The Minister may impose procedures and guidelines for the management, conservation and
preservation of National Heritage109.
102 Section 45(1) of National Heritage Act 2005 103 Section 45(3) of National Heritage Act 2005 104 Section 46(1) of National Heritage Act 2005 105 The conservation plan will identify appropriate processes and procedures that become guide for conservation and preservation of the Conservation Area. This helps private owners, architects and engineers that carry out works of development within the conservation law to implement conservation according to the appropriate standard. Other than that, Section 46(1)(c) of National Heritage Act 2005 also includes financial assistance to owners. However, the Act does not follow up with a mechanism. Therefore, the financial assistance may come in a form of grant or loan by the Commissioner according to Section 43(1). 106 The author does not find any explanation in National Heritage Act 2005 on the mechanism of achieving this purpose. 107 Section 46(2) of National Heritage Act 2005 108 Section 46(3) of National Heritage Act 2005 109 Section 72(1) of National Heritage Act 2005
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Given the nature of heritage buildings that is at risk of decay due to age, maintenance is the
most important element of conservation. The owner is entrusted with the duty to keep his Heritage Site
in good condition110. The Commissioner may make arrangements with private owner of listed building
for the inspection, maintenance, conservation and preservation of the Heritage Site111.
Section 38(1) (d) is an interesting provision because on the surface of it, it allows the
Commissioner to remove the whole or any part of a building on the Heritage Site. As such, does the
law gives authority to the Commissioner to torn apart a heritage building? In the author’s opinion, the
section is introduced to allow the process of building relocation. In short, the process involves
disassembling a building and then reassembling it at the preferred destination. The reasons of the
conservation approach is usually to allow redevelopment project112.
Many heritage buildings especially traditional mansions and old shop houses113 in Malaysia are
privately owned. Therefore, the position of the law in conservation of privately owned building is
important to study the effect of NHA.
110 Section 42(1) of National Heritage Act 2005 111 Section 38(1)(a) of National Heritage Act 2005 112 Taipei City Government, Department of Civil Affairs, History of Lin An Ta Historical House, 4 December 2014, 5 June 2015 <http://english.linantai.taipei/ct.asp?xItem=91492030&ctNode=75264&mp=10200E> A notable example is Lin An Tai Historical House in Taiwan. The historical house faced a threat of demolition in 1978 to expand Dun Hua S. Road. Fortunately, under the suggestions of scholars and experts, a project of moving it for reconstruction had been performed. This historical house is now open to public as a major tourist spot. Athi Shankar, “Why Three Versions on Heritage Building”, FMT News, 6 September 2014, 5 June 2015 <http://www.freemalaysiatoday.com/category/nation/2014/09/06/why-three-versions-on-heritage-building/> This conservation approach is relatively new in Malaysia. Conservation experts adopt the method to conserve a heritage building in Jalan Macalister, Penang. 113 Syed Abdul Haris Syed Mustapa, Kamarul Syahri Kamal, Mohamad Zaki Zainul, “Rehabilitation of Heritage Buildings in Malaysia”, Proceedings of International Semianr on Modern Urban and Architectural Heritage at Jakarta, December 5, 2005. 126-133, at 132
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Fundamental Liberties under Federal Constitution
Article 13(1) of the Federal Constitution guarantees citizens’ right to property114. It covers the
right of an owner to enjoy115 and dispose his property freely. As mentioned in the previous sub-topic,
NHA restricts the private owner’s right to develop a listed building. Hence, although he retains the
actual ownership116, his control over the property have been significantly compromised.
Some argue for the separation of property rights117 where the physical ownership of a heritage
building belongs to the owner, but others which concern “cultural heritage significance” belong to the
community that creates the heritage value which they embody118. Thus, the right to develop a heritage
building does not belong to the owner only but also the general public. As such, although the law
recognizes the right of owners, it has to also protect the collective interest in conservation to ensure
public enjoyment119.
To conclude, even though conservation raises the criticism of state intervention in matters of
private property, the author believes in a necessity for the government to intervene in private rights for
public good. The owners’ use of the property has to be restricted if it conflicts with heritage value.
114 The author noted that the recognition of property rights is subject to the “save in accordance with law” clause. Thus, NHA being a legislation lawfully enacted by the Parliament is allowed to deprive the private owner his right to property by the constitution. S Kulasingham & Anor v Commissioner of Lands, Federal Territories & Ors [1982] 1 MLJ 204 However, it is difficult to say that the National Heritage Act 2005 provides adequate compensation the owner for the restriction of their property rights as required in Article 13(2) of the Federal Constitution. National Heritage Act 2005 does not require the Commissioner to assess and contribute to the cost consequential to the listing (e.g. reduction in the property’s value). The provisions that allow compensation only cover situations where loss and damages were caused by the authority in carrying out the duty. Further, even if the government provides contribution to the maintenance for the private owners pursuant to Section 38(2). In the face of high land value and maintenance cost, it is quite impossible to say that the government have compensated the owners for their loss of development rights arising from the listing of the heritage building. 115 Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418 116 National Heritage Act 2005 allows private owner to retain ownership after listing their building. Though there is no specific provision on this issue for Heritage Site, Section 69 is clear with regards to National Heritage. The provision provides that National Heritage which is owned or possessed by a person other than the Federal Government or the State Government may remain in the possession of its owner, custodian or trustee. 117 Francoise Benhamou, “Who owns cultural goods? The case of the built heritage” ftp://www-bsg.univ-paris1.fr/pub/mse/cahiers2003/R03102.pdf 118 The Conservancy Association, “Heritage For The People, Position Paper”, October 2003, 5 June 2015 http://www.cahk.org.hk/heritage/Herit_posE.pdf 119 The author thereafter feels that adaptive reuse is the best conservation method to protect the interest of both ends. It allows the owner to retain his right to develop his property, while the society conserve buildings with cultural heritage significance.
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Objection to List a Building
Although NHA does not explicitly require a private owner’s consent to list a building, Section
28 and Section 67(8) gives them the opportunity to object to the listing of heritage building120. This
ensures fairness121 in the legislative framework.
The author is in a dilemma on the application of the objection mechanism. The author agrees
that the owner’s opinion should be heard when his right is adversely affected by the Commissioner’s
decision. However, the fundamental reason to introduce conservation law is to protect heritage
buildings from destructive development. Thus, the Commissioner and the Minister should insist in
listing the building even if the owner has a valid cause in redeveloping the property122.
Dealings of Listed Building
The government does not own a private listed building unless the Commissioner or the Minister
decides otherwise. The Commissioner may purchase or acquire a Heritage Site from the owner in
accordance to Land Acquisition Act 1960123. The Department has utilized this provision in purchasing
the 122 years old Rumah Teh Bunga, Pulau Pinang and allowed restoration work to be done124.
An owner is also allowed to sell a listed building on his own. The owner has to notify the
Commissioner within 28 days after the completion of the purchase or acquisition125.
120 The Commissioner will carry out a hearing after receiving the notice of objection by the owner of the proposed Heritage Site. The owner has a minimum period of 21 days to prepare his defence after the notice of hearing is served by the Commissioner. The Commissioner may proceed with the proposed designation after the hearing if he is satisfied that the site is of cultural heritage significance with or without assigning any reason. The mechanism of conducting a hearing is absent in relation to National Heritage. The author thinks that hearing is circumspectly omitted because the nature and consequence of declaring a National Heritage is similar to a Heritage Site. Therefore, the owner have had a reasonable chance to explain any grounds that the Commissioner should consider against the proposed designation. The Minister is advised by the Council to decide whether or not to revoke the order upon receiving an objection in writing by the owner. An owner may appeal against the designation of Heritage Site to the Minister. Thus, the Minister has the final say in gazetting both Heritage Site and National Heritage. It is important to note the decision is only final at the departmental stage. The provision does not stop a private owner to go to the court for a judicial review. The remedy in administrative law is available to nullify the decision if the Minister did not act fairly in the process of making the decision. Ridge v Baldwin [1964] AC 40 121 Parliamentary Debates, Representative, Eleventh Parliament, Second Session, Second Meeting, 7 December 2005, (Tuan Chow Kon Yeow) at page 66 122 Sonia Ramachandran, “Another Rally in Brickfields Today Against Decision of Ashram’s Trustees”, 5 April 2015, 5 June 2015 <http://www.theantdaily.com/Main/Another-rally-in-Brickfields-today-against-decision-of-ashram-s-trustees> The trustee of the Vivekananda Ashram in Brickfields argued that they need to redevelop their property to raise fund to support four schools under the trust. 123 Section 38(1) of National Heritage Act 2005 124 Malaysia, Department of National Heritage, Majlis Perisythiharan Rumah The Bunga Sebagai Bangunan Warisan, 6 March 2010, 5 June 2015 http://www.heritage.gov.my/index.php/berita-a-aktiviti/tahun-2010/302 125 Section 37f of National Heritage Act 2005
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On the other hand, the owner of a National Heritage has to give priority to the Commissioner
if he wants to sell his property126. In the event that the Commissioner decided not to buy, the owner may
sell the building to other people with the Commissioner’s approval127.
Funding Support for Conservation Work
The imposition of the duty to maintain listed buildings creates additional financial burden to
the owner128. Thus, it is important for NHA to make funding available to encourage owners to undertake
conservation work.
Grant and Loan
A Heritage Site owner may apply to the Commissioner for grant or loan to carry out
conservation works129. The Commissioner may impose conditions to the loan and grant130. The author
finds this fair because the government has to ensure that the injection of capital produces reasonable
returns so that the money is not wasted.
In relation to National Heritage, the owner may apply from financial assistance from the
Minister to comply with procedure or guidelines prescribed under Section 72(1)131.
NHA is clear on the procedures to apply for a grant and loan132. However, the Act is silent on
the conditions that the owner must show to successfully apply for the funding. The author submits that
126 Section 70(2) of National Heritage Act 2005 127 Section 70(1)(b) of National Heritage Act 2005 128 To an extent, the author finds the economic costs of heritage conservation are disproportionately imposed on the private owners. The community’s contribution through public funding allocation should be increased because of the benefits the community and government gains from conserving the heritage building. 129 Section 43(1) of National Heritage Act 2005 130 Section 43(4) of National Heritage Act 2005. An example of condition that the author may relate is to require private owners to allow reasonable public access to the heritage building. This has been done by the Hong Kong government to allow the public to visit and appreciate the buildings. One of the building concerned is main building of Helena May, Central, a grade 2 historic building that accepted a grant of $600,000 under the Financial Assistance for Maintenance Scheme. 131 Section 72(2) of National Heritage Act 2005 132 Mdm Nurul Majdiah told the author that the Department has never give out any grant or loan up until now because they prefer to conduct conservation works on private listed building themselves. This approach protects listed building from disruptive repair work by private firms. However, the department nevertheless has its limitation on the number of buildings it can afford to conserve at one time. Malaysia, Department of National Heritage, Bangunan Lama Hongkong and Shanghai Bank, 25 April 2011, 5 June 2015 <http://www.heritage.gov.my/index.php/konservasi/konservasi-bangunan/rumah-kediaman/bangunan-lama-hongkong-and-shanghai-bank-hsbc>
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the owner must prove that he has solid plans and is capable in completing the said conservation works.
Secondly, the author views that monetary incentive is sometimes problematic because it disengages
prudent owners that spend their own money to take good care of the property. Such mechanism in
actuality rewards the group of owners that deliberately neglect their responsibility to maintain their
property.
Entry Fee
Many Heritage Sites are adaptively reused in Malaysia, rendering them into tourist spots like
museums that attract visitors to come and experience the authentic heritage atmosphere. The owners
may recoup some restoration costs by charging rent as long as an approval was obtained by the
Commissioner133. As such, NHA allows owners to derive economic benefits from their property.
3.7 Public Participation in Heritage Conservation
Nomination of National Heritage
Any person may nominate a heritage building to the Minister to be declared as a National
Heritage134. The law thus covers only nomination of National Heritage135. As such, the scope of the
provision is relatively small because the criteria of listing a National Heritage is more stringent than
those imposed on a Heritage Site. However, the author acknowledges that there is nothing in the Act
that prohibits the Minister to refer the said building to the Commissioner for assessment to register it as
a Heritage Site.
The author suggests to make administrative follow-up procedures of a nomination clear in the
Act to ensure that the Minister researches on the eligibility of the building. Secondly, there are no set
processing time for the assessment of application. The features of the building should be assessed
quickly so that the approval process is done efficiently.
Another suggestion is to allow a review of the Minister’s decision. A transparent process in
analyzing and assessing the values is important to enhance the credibility and accountability of the
Examples of conservation projects done was HSBC Building, Melaka and Persatuan Sejarah Malaysia Cawangan Terengganu (PSMCT) Building, Terengganu in 2009. 133 Section 44(1) of National Heritage Act 2005 134 Section 68 of National Heritage Act 2005 135 Compare nomination of building in the United Kingdom, therefore only one listing application procedure. Any person may apply for a heritage asset to be added to the National Heritage List for England (NHLE) through Historic England.
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government. A relevant example that proves the significance of this suggestion is the demolition of Bok
House, Jalan Ampang136 in 2006. Despite the persistent attempts taken by Malaysia Heritage Trust in
nominating the building as National Heritage, the Minister and the Heritage Commissioner refused to
confer such recognition137.
Heritage conservation is not only a technical practice, but also a socio-cultural one. Therefore,
assessment of cultural heritage significance based on what few government officers perceive is
insufficient to capture the all-embracing view. The public should be encouraged to identify heritage
buildings138.
Living in a democratic society, the government has to be responsive to the public. The author
acknowledges that the enactment of NHA139 has enhanced public involvement. However, the regrettable
fact is that the law fails to adequately address transparency and democratic participation in decision
making processes.
136 The 77 years old house was initially a residence, then Bok House was used as the Yokohama Specie Bank during the Japanese Occupation in 1942, before finally housing The Golden Cockerel restaurant since 1958. The restaurant has hosted numerous society functions and our first Prime Minister and nearly all his successors have dined there. Bok House also has impressive architectural qualities mixing Malay, Palladian, Greek and Italian Renaissance elements. 137 Nurul Hamiruddin Salleh, loc cit. 138 Public involvement is also important so that the public develop a sense of belonging to the heritage of the country. Society that has a great understanding of their heritage will be more willing to make contribution to the conservation of heritage building. 139 It is an improvement of heritage law in this aspect because Antiquities Act 1976 did not have any provisions that allows the public to nominate heritage building to be listed.
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CHAPTER 4
THE UNITED KINGDOM EXPERIENCE:
COMPARISON AND APPLICATION IN MALAYSIA
The author chooses United Kingdom (UK) as a comparative jurisdiction because Malaysian
planning law is historically influence by the UK140. Secondly, UK case law decided after the cut-off
date are still highly persuasive in Malaysian court 141 . Therefore, UK cases are rich sources in
understanding the application of the law. This research paper focuses on three aspects of the
conservation law: listing system, development control and management of heritage building.
4.1 Listing System
United Kingdom
Planning (Listed Buildings and Conservation Areas) Act 1990 imposes a duty on the Secretary
of State (SofS) of the Department for Culture, Media and Sport (DCMS) to compile and approve
buildings of special architectural or historic interest to the National Heritage List for England (NHLE)142.
Buildings on the NHLE are categorized according to Principles of Selection for Listed
Buildings (March 2010)143 as follows:-
a) Grade I: buildings of exceptional interest;
(b) Grade II: buildings of more than special interest; and
(c) Grade II: buildings of special interest.
140 Who’s the Ultimate Planning Authority in Malaysia? Reviewing the Powers and Role of the Appeal Board. Journal of Malaysian and Comparative Law [2002] JMCL 12, at 12 “The Malaysian planning law is closely modelled after the British counterpart. Its Town and Country Planning Act 1976 is substantially based on the Town and Country Planning 1970 of the UK.” 141 Pang Soo v Tong Ah Company Sdn Bhd [2010] 2 CLJ 482 142 Section 1 of Planning (Listed Buildings and Conservation Areas) Act 1990. National Heritage List for England is maintained by Historic Buildings and Monuments Commission for England, or Historic England. It is the government’s statutory adviser on the historic environment. It is an executive non-departmental public body funded by the Department for Culture, Media and Sport and in part from revenue earned from the historic properties in its care and from other services it provides. Its powers and responsibilities are principally set out in the National Heritage Act 1983 (Section 32 to Section 38). It reports to Parliament through the Secretary of State for Culture, Media and Sport. Before approving the building, the Secretary of State will consult with Historic England. Application for new entries and to remove or amend an existing entry are made to Historic England. It will investigate the merits of the application and make a recommendation to the Secretary of States who will make the decision whether to list the building. 143 This is the general principles applied by the Secretary of State when deciding whether a building is of special architectural or historic interest and should be added to the list of buildings compiled under the Planning (Listed Buildings and Conservation Areas) Act 1990.
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The principle criteria in deciding whether or not to list a building includes group value144,
architectural interest145, historic interest146, age and rarity147, aesthetic merits148, selectivity149, national
interest150 and state of repair151.
Comparison and Application in Malaysia
UK adopted a hierarchical listing system (see appendix Table 1). The author sees it as a way to
facilitate prioritization of decisions relating to the funding allocation in Malaysia. However, consider
144 Section 1(3) of Planning (Listed Buildings and Conservation Areas) Act 1990. Iveagh v the Minister of Housing and Local Government [1964] 1 Q.B. 395 decided that it was proper to consider the interest of the whole group of building in deciding whether to list a building forming part of a terrace. 145 Section 1(3) of Planning (Listed Buildings and Conservation Areas) Act 1990and Principle 9 of Principles of Selection for Listing Buildings. To be of special architectural interest a building must be of importance in its architectural design, decoration of craftsmanship; special interest may also apply to nationally important examples of particular building types and techniques (e.g. buildings displaying technological innovation or virtuosity) and significant plan forms. 146 Section 1(3) of Planning (Listed Buildings and Conservation Areas) Act 1990and Principle 9 of Principle of Selection for Listing Buildings. To be of special historic interest a building must illustrate important aspects of the nation’s social, economic, cultural or military history and/ or have close historical associations with nationally important people. There should normally be some quality of interest in the physical fabric of the building itself to justify the statutory protection afforded by listing. 147 Principle 12 of Principle of Selection for Listing Buildings. The older a building is, and the fewer the surviving examples of its kind, the more likely it is to have special interest. The following chronology is meant as a guide to assessment; the dates are indications of likely periods of interest and are not absolute. The relevance of age and rarity will vary according to the particular type of building because for some types, dates other than those outlined below are of significance. However, the general principles used are that:
Before 1700, all buildings that contain a significant proportion of their original fabric are listed;
From 1700 to 1840, most buildings are listed;
After 1840, because of the greatly increased number of buildings erected and the much larger numbers that have survived, progressively greater selection is necessary;
Particularly careful selection is required for buildings from the period after 1945;
Buildings of less than 30 years old are normally listed only if they are of outstanding quality and under threat.
148 Principle 13 of Principles of Selection for Listing Buildings: The appearance of a building- both its intrinsic architectural merit and any group value- is a key consideration in judging listing proposals, but the special interest of a building will not always be reflected in obvious external visual quality. Buildings that are important for reasons of technological innovation, or as illustrating particular aspects of social or economic history, may have little external visual quality. 149 Principle 14 of Principles of Selection for Listing Building. Where a building qualifies for listing primarily on the strength of its special architectural interest, the fact that there are other buildings of similar quality elsewhere is not likely to be a major consideration. However, a building may be listed primarily because it represents a particular historical type in order to ensure that examples of such a type are preserved. Listing in these circumstances is largely a comparative exercise and needs to be selective where a substantial number of buildings of a similar type and quality survive. In such cases, the Secretary of State’s policy is to list only the most representative or most significant examples of the type. 150 Principle 15 of Principles of Selection for Listing Buildings. The emphasis in these criteria is to establish consistency of selection to ensure that not only are all buildings of strong intrinsic architectural interest included on the list, but also the most significant or distinctive regional buildings that together make a major contribution to the national historic stock. For instance, the best examples of local vernacular buildings will normally be listed because together they illustrate the importance of distinctive local and regional traditions. Similarly, for example, some buildings will be listed because they represent a nationally important but localized industry, such as shoemaking in Northamptonshire or cotton production in Lancashire. 151 Principle 16 of Principles of Selection for Listing Buildings. The state of repair of a building is not a relevant consideration when deciding whether a building meets the test of special interest. The Secretary of State will list a building which has been assessed as meeting the statutory criteria, irrespective of its state of repair.
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the much smaller number of listed building in Malaysia152, the author reaches the conclusion that the
Malaysian approach is adequate to handle eventual management of listed building.
The author finds the identification and assessment a crucial factor to determine the effectiveness
of the conservation law because its result determine whether a building is protected under the federal
law. The drawback of Malaysian law is apparent because although it has a comprehensive list of values
that the law deems to protect, NHA is too general.
When heritage buildings are valued subjectively, the government who has the control of
identifying heritage building is in a powerful position to push forward its perception of historical,
cultural, and societal values by making decisions according to their will without public scrutiny.
In 2010, Pudu Jail153 in Kuala Lumpur was demolished to make way for a mixed development
zone. Deputy Finance Minister Datuk Awang Adek Hussin justified the government decision in
Parliament of not turning it into a Heritage Site, he said that “The government has studied the matter
and decided that the 115 year old Pudu Jail is not a Heritage Site and will not be turned into one because
to our opinion, it is not something to be proud of”. Having said that, Malaysia Heritage Trust, the KL
based heritage conservation NGO stated that “despite having a brutal and insalubrious story, Pudu Jail
was part of Malaysia’s penal history”154.
Further clarification on the interpretation the values should be provided to counter the
subjectivity that wide definition confers. The UK Principles of Selection for Listed Buildings is a good
reference to draft a guideline of Malaysian flavor.
The question also arises as to whether the public has opportunities to comment during the listing
process. The author suggests that the Commissioner may hold a public consultation to invite feedback
from the public on any proposed listing or demolition.
152 There were approximately 375,588 listed buildings in the United Kingdom as of 2012. According to the Department of National Department’s website updated on the same year, Malaysia has 223 listed buildings. 153 Pudu Jail was built since 1895 by British administration of Malaya, its integral role was when it was used as P.O.W. camp center during the Japanese occupation. Many members of the Allied Forces and locals were tortured and beheaded on prison grounds. The post war period saw the formation of local organizations fighting for an Independent Malaya. A large number of nationalist were imprisoned in Pudu Jail by the British Administration, among them Idris Hakim. Thus, within 100 years of serving as a prison, Pudu Jail’s inmates were not solely convicts but also nationalist who fought against Japanese and British for Malaya’s liberation. Pudu Jail is also of value for its colonial architectural design. The form of Pudu Jail’s core parts dating from 1895 remains unaltered. A relic of the Victorian period, Pudu Jail’s architecture is strongly influenced by British colonial prison structure and design which emphasizes security and manual operation. In conclusion, the historical and architectural significance of Pudu Jail are obvious to be regarded as a National Heritage. (Mariana Isa, “A conservation statement on Pudu Jail, Kuala Lumpur” 154 A statement by the Malaysia Heritage Trust.
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Another instance is the demolition of Bok House, Kuala Lumpur in 2010. The Commissioner
decided not to gazette it because the building was structurally unsound155. The author finds this a lacuna
in our present law because NHA did not address this matter. The state of repair of a building should not
be a relevant consideration unless it diminishes the “cultural heritage significance” to such that the
building is no longer valued by the society156. The UK guideline makes it explicit for the SofS to
disregard this aspect.
Secondly, the author believes that it would be advantageous for the NHA to lay out specific
characteristic that automatically trigger protection. The UK guideline provides an acceptable
prerequisite- buildings built before 1700. This provides effective regulation to important historic assets
that are overlooked and may circumvent the Commissioner’s reluctance in exercising its discretion.
It is indeed shocking to the author that no one has ever challenged the Commissioner’s decision
not to list a building in Malaysian court. R (Bankcroft) v Secretary of State157 concerns with a decision
not to list a famous building designed in the early 1960s by John Bankcroft. The court took into account
the design of the building and held that “the profession of architecture is generally regarded as not only
an art but a science; a profession devoted not solely to providing aesthetic pleasure, but rather a
profession which seeks to provide aesthetically original or pleasing solutions to the practical and
functional challenges presented by its briefs. It follows in my judgment that the Secretary of State was
entitled to make into account any design flaws in the building and the seriousness or otherwise of their
consequence in determining whether to list the building.” The case fails and it transpired that the UK
courts are unlikely to allow an application to challenge a listing because the Secretary of State has
discretion to decide with the advice of English Heritage. Thus, the author submits that strong evidence
is required to persuade the court to overturn the Commissioner’s decision158.
155 Ronald Robert, “Bok House Demolition Raises Key Issues”, The Sun Daily, 7 April 2007, 5 June 2015 http://www.thesundaily.my/node/170731 156 In actuality, many argues that the Heritage Commissioner’s reasoning in refusing to designate Bok House absurd because Suffolk House and Cheong Fatt Tze Mansion in Penang which were previously in dilapidated state, is successful restored. 157 [2005] JPL 144 158 Another jurisdiction to look into is Hong Kong. The case of Chu Hoi Dick and Ho Loy v Secretary for Home Affairs HCAL 87/2007 held that the yardstick of “high threshold” and “indisputable heritage significance” is reasonable and lawful when the Secretary for Home Affairs decide on whether or not declare Queen’s Pier a monument.
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Building Preservation Notice
United Kingdom
Building preservation notice is served by the local planning authorities on the owner of an
unlisted building, but which they believe it to be of special architectural or historical interest and is in
danger of demolition or alteration in such a way as to affect its character159.
The notice comes into force as soon as it has been served on the owner and stays for a maximum
of 6 months until the SofS lists the building or notifies the local authorities in writing that he does not
intend to list it160. While the notice is effective, the building is to be protected as if it were a listed
building161.
Comparison and Application in Malaysia
The essential elements of the Malaysia and UK law are similar (see appendix Table 2). The
author finds this mechanism highly effective in the event that the building had been overlooked and
excluded from the list. The notice gives the Commissioner time to consider whether to designate the
building concerned to the Register.
Conservation Area
United Kingdom
Conservation Area is “an area of special architectural or historic interest the character or
appearance of which it is desirable to preserve or enhance”162. Thus, Conservation Area does not only
conserve individual buildings163 but also landscape and public spaces that define an area’s special
interest.
The duty to determine Conservation Area belongs to the local planning authorities164. The
authorities have to formulate and publish proposals for the preservation and enhancement of their
159 Section 3(1) of Planning (Listed Buildings and Conservation Areas) Act 1990. 160 Section 3(3) of Planning (Listed Buildings and Conservation Areas) Act 1990. 161 Section 3(5) of Planning (Listed Buildings and Conservation Areas) Act 1990. 162 Section 69(1)(a) of Planning (Listed Buildings and Conservation Areas) Act 1990. 163 Conservation designation extends protection over unlisted buildings in the area because they equally contribute to the character or appearance of the area. 164 Section 69(1) of Planning (Listed Buildings and Conservation Areas) Act 1990. Upon designation, the authorities is required to notify the Secretary of State and Historic England (if the area is in England) by Section 70(5) of Planning (Listed Buildings and Conservation Areas) Act 1990. In default of the authorities, the Secretary of State and Historic England also have power
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Conservation Areas165. Owners of buildings in the Conservation Area do not have to be notified and
have no right to object the designation of Conservation Area. However, the community in a
Conservation Area may give feedback to the proposals made by the authorities through public meeting.
The authorities must give regard to such views expressed166.
Comparison and Application in Malaysia
Malaysia and UK uses conservation area approach (see appendix Table 3). The author finds
this an impactful method of conservation because conserving a whole heritage area creates an open air
museum atmosphere which demonstrates the whole environmental character as well as a vivid life
style167. This holistic way of conservation also ensures development is compatible with the heritage
buildings.
CMP protects the authentic landscape of a heritage area. It happens quite often in Malaysian
cities where modern buildings like high rise offices and skyscrapers are built side by side heritage
buildings. This led to controversy that the construction of such buildings destroy the skyline and
background scenery of the area168.
In addition, owners of heritage building benefits from the guidelines provided by the Minister
on how to conserve their building. The CMP also serves as a database to store the conservation history
of a building. This ensures a clear record to determine future conservation work of the building.
to designate areas after consultation with the authorities pursuant to Section 69(3) and Section 70(1) of Planning (Listed Buildings and Conservation Areas) Act 1990. 165 Section 71(1) of Planning (Listed Buildings and Conservation Areas) Act 1990. 166 Section 71(1) and Section 71(2) of Planning (Listed Buildings and Conservation Areas) Act 1990. 167 Chien, Ni Yin, “Change in Historic Buildings”, (Thesis Masters, Massachusetts Institute of Technology, Cambridge, 1989), at page 21 168 Ida Lim, “Heritage Park Status Only Way to Save Landmark Stadium, MPs Say”, The Malay Mail Online, 10 October 2013, 5 June 2015 http://www.themalaymailonline.com/malaysia/article/heritage-park-status-only-way-to-save-landmark-stadia-mps-say A recent example is the construction of Kuala Lumpur 118, a 118 storey skyscraper built within the vicinity of Stadium Merdeka.
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4.2 Development Control
Criminal Penalties
United Kingdom
It is a criminal offence169 to execute or cause to execute any works for the demolition of a listed
building or for its alteration or extension in any manner which would affect its character as a listed
building unless the works are authorized170.
In addition to charging the offender, local planning authorities may seek recourse by serving a
Listed Building Enforcement Notice (LBEN)171 on the owner of the listed building172. The notice will
require remediation of the unauthorized work by restoration the building173. If restoration is not practical
or desirable, the authorities will specify works to mitigate the effect of the unauthorized work174.
Where the requirements in the LBEN have not been complied within the stated period, the
authorities may enter the land in question and perform the required work175. The authorities may then
recover its reasonable expenses from the owner176. Non-compliance with LBEN is also criminal offence
under the 1990 Act177.
Comparison and Application in Malaysia
Both Malaysia and UK make unauthorized work on listed building a criminal offence (see
appendix Table 4). The author suggests that NHA should allow the court to give out restoration order
169 Section 9 of Planning (Listed Buildings and Conservation Areas) Act 1990. 170 Section 7 of Planning (Listed Buildings and Conservation Areas) Act 1990. 171 Section 38(1) of Planning (Listed Buildings and Conservation Areas) Act 1990. 172 Section 38(4) of Planning (Listed Buildings and Conservation Areas) Act 1990. Listed Building Enforcement Notice must be served no later than 28 days after the date of issuance and not later than 28 days before the date specified in the notice as the date upon which it is to take effect. 173 Section 38(2)(a) of Planning (Listed Buildings and Conservation Areas) Act 1990. 174 Section 38(2)(b) of Planning (Listed Buildings and Conservation Areas) Act 1990. 175 Section 42(1) of Planning (Listed Buildings and Conservation Areas) Act 1990. 176 Section 42(2) of Planning (Listed Buildings and Conservation Areas) Act 1990. 177 Section 43 of Planning (Listed Buildings and Conservation Areas) Act 1990. However, the offender may have a defence under Section 43(4) if he can show that he did everything he could be expected to do to secure all steps required by the notice.
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to command the perpetrator to restore the damaged building at his own expense 178 so that the
government or private owner do not have to bear such cost.
Planning Permission
United Kingdom
Control mechanism through restriction of development works covers all types of buildings,
regardless if it is listed. All development work that affects the external appearance of a property and
causes material changes of use requires planning permission179 from the local authorities180. A failure
to apply for planning permission can lead to an enforcement notice.
Enterprise and Regulatory Reform Act 2013 requires an owner to apply for planning permission
if he wants to demolish181 an unlisted building in a Conservation Area. It is an offence to demolish
buildings without the consent of the authorities182.
Comparison and Application in Malaysia
The Malaysian planning law also requires planning permission from the local authority before
any person may commence development183 (see appendix Table 5). Looking at the application of NHA,
the Commissioner plays a role to coordinate and advise the authority before any planning permission
on listed buildings and its neighboring land is granted.
Thus, in Malaysia, the owner of the building has to apply for consent from the Commissioner
and the authorities. In relation to NHA, development control covers not only demolition, but all
activities that may trigger a criminal offence.
178 This option is in fact provided in Section 118 of National Heritage Act 2005 where the court may order the person to pay, in addition to any penalty that may be imposed, the costs of the repair, restoration or reconstruction of the heritage item. However, the court may not order so for an offence provided in Section 112 and Section 114 because penalty is expressly provided in the provisions. 179 Owners may only exercise their permitted development rights which allow them to make minor changes to buildings without needing to apply for planning permission. The conditions of permitted development are provided in Town and Country Planning (General Permitted Development) Order 1995. 180 The authorities will decide on the application following the government’s policy for the historic environment as set out in National Planning Policy Framework March 2012 (NPPF). 181 The difference between demolition and alteration was considered in Shimizu (UK) Limited v Westminster City Council [1996] 3 P.L.R. 89. It was held that “demolition” refers to the pulling down of the building so that it was destroyed completely or at least to a significant extent. 182 Section 74(1) of Planning (Listed Buildings and Conservation Areas) Act 1990and Section 196D of the Town and Country Planning Act 1990. 183 Section 19 of Town and Country Planning Act 1976
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Listed Building Consent
United Kingdom
Application for Listed Building Consent should be made to the local planning authority184
before all works of demolition, alteration or extension to a listed building that affect its character as a
building of special architectural or historic interest185. SofS may also exercise its power under the call-
in provisions186 to direct planning applications be referred to him187. When the works involve demolition
of listed building, one month notice has to be served on Historic England.
The authorities or SofS are required to have special regard to the desirability of preserving a
listed building or its setting or any features of special architectural or historic interest it possess when
granting consent188. It is a criminal offence to carry out such works without consent189.
Comparison and Application in Malaysia
Both Malaysia and UK requires consent from the authority before any works can be conducted
on listed buildings (see appendix Table 6). The author suggest an administrative right to appeal in NHA
so that an owner may appeal against a refusal to consent to the proposed work. It is vital that the right
exists as a form of explanatory accountability to ensure the Commissioner does not make an erroneous
assessment of the development work impact to the heritage building. The right to private property
should not be limited by unnecessary restrictions.
184 Section 10 of Planning (Listed Buildings and Conservation Areas) Act 1990. 185 Section 7 of Planning (Listed Buildings and Conservation Areas) Act 1990. 186 There is no formal regulation as to when the Secretary of State will call in application. It is likely that that cases will be called in when it raises the development application is of exceptional significant or controversial. Additionally, Secretary of State may call in an application when he is considering a related planning application or compulsory purchase order. Cases such as R v Secretary of States ex p Newprop [1983] J.P.L 386 and Lakin Ltd v Secretary of State for Scotland [1988] SLT 780 187 Section 12 of Planning (Listed Buildings and Conservation Areas) Act 1990. 188 Section 16(2) of Planning (Listed Buildings and Conservation Areas) Act 1990. 189 Section 9(1) of Planning (Listed Buildings and Conservation Areas) Act 1990.
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Local Authority and Development Works
United Kingdom
Planning Permission
Local planning authorities are required to apply for planning permission and listed building
consent to undertake development works affecting a heritage property from the SofS190. It is also “a
matter of good practice” for an authority in England to notify Historic England of the development
proposals191.
Planning Principles
When planning functions with regard to any listed building or other land within a Conservation
Area, the authorities have to give special attention to the desirability of preserving192 or enhancing the
character or appearance of that area193. The court was invited to interpret this provision in several cases.
Bath Society v Secretary of State for the Environment and Hammercrest Developments Ltd194
summarized the proper approach to be taken by decision makers when considering an application for
planning permission for development in Conservation Areas:
“Nevertheless, there will be some cases in which a development can simultaneously enhance
the character or appearance of a Conservation Area but nevertheless cause some detriment. That
detriment mental effect was a material consideration. The Harrow case195, in which the inspector
concluded that the quality of design of the proposed theatre would enhance the area, but that the
additional traffic was a detriment, and that these factors had to be weighed, the one against the other,
was a good example of this. This seems to be a perfectly proper approach.”
190 Section 82(4) (a) of Planning (Listed Buildings and Conservation Areas) Act 1990. Regulation 13(2) of Planning (Listed Buildings and Conservation Areas) Regulation 1990. Such application is then deemed to have been referred to the Secretary of State under the call in provisions. 191 Circular 01/01: Arrangements for Handling Heritage Applications 192 Barnwell v East Northamptonshire DC [2014] EWCA Civ 137 held that the Parliament’s intention in enacting Section 66(1) was that “decision makers should give considerable importance and weight” to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise. 193 Section 66(1) and Section 72(1) of Planning (Listed Buildings and Conservation Areas) Act 1990. 194 [1991] 1 W.L.R. 1303 195 The Mayor and Burgeses of the London Borough of Harrow v Secretary of State for the Environment [1991] J.P.L. p. 137
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In South Lakeland DC v Secretary of State for the Environment and Halpin196, Lord Justice
Mann held that “whilst the character and appearance of Conservation Areas should always be given full
weight in planning decisions, the objective of preservation can be achieved either by development which
leaves character and appearance unharmed”. Therefore, it is said that the requirement to preserve the
character or appearance of a Conservation Area imposes no obligation to positively enhance the area.
Comparison and Application in Malaysia
The Commissioner and Historic England advice the authorities on development plans affecting
heritage property. The author finds them quite powerless to prevent authorities from abandoning their
role in conserving heritage building because their advice is not binding. However, the UK planning law
manifestly impose duty on the local planning authorities to consider the conservation of heritage
buildings in making planning decisions. Therefore, it is a breach of statutory duty when the authorities
fail to accord urban development with heritage conservation.
The author finds the law advantageous so that the authorities are required by law to cover
conservation policies in their development plans. Malaysia should incorporate such provision in our
planning law.
4.3 Management of Heritage Building
There is no statutory provision that requires owner of a listed building to keep the buildings in
good condition in United Kingdom.
Urgent Work Notice (UWN)
United Kingdom
Local authority has power to carry out works that are urgently necessary in respect of a listed
building within their area197. The owner will be given at least 7 days’ notice in writing198 prior to the
repair work.
196 [1993] J.P.L. 644 197 Section 54(1) of Planning (Listed Buildings and Conservation Areas) Act 1990. On the other hand, Secretary of State has the power to authorize Historic England to carry out as such if the listed building is in England according to Section 54(2) of Planning (Listed Buildings and Conservation Areas) Act 1990. 198 R v London Borough of Camden ex p Comyn Ching and Co [1983] 47 P. & C.R. held that the notice should specify the necessary work in detail.
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The works only extend to temporarily support or provide shelter for the building 199 .
Furthermore, if the building is occupied, such works can only be carried out to parts of the building
which are not in use200. The authorities may recover expenses incurred by issuing notice to the owner
requiring him to reimburse those cost201.
Comparison and Application in Malaysia
Unlike the UK, the Commissioner does not have the power to make repair order to private
orders to conduct maintenance on their property 202 (see appendix Table 7). Towards effective
maintenance of listed buildings, the author suggests to allow the commissioner to do so. In event of
failure to meet with the requirement, the owner should be subjected to penalty. The Commissioner
should also thereafter be empowered, like the UK law, to conduct repair work at the listed building and
recover the costs from the owner. However, the UK approach focuses only to unoccupied buildings, the
author disagree and feels that upon sufficient notice, the inaction of the owner justifies the cause of the
Commissioner to intervene.
The author also suggests to set out an evaluation schedule for the use of Commissioner so that
regular check-up is ensured203. This is important to allow proper maintenance from time to time to avoid
incident like the collapse of ceiling in Parliament building in the year of 2006204.
199 Section 54(3) of Planning (Listed Buildings and Conservation Areas) Act 1990. 200 Section 54(4) of Planning (Listed Buildings and Conservation Areas) Act 1990. 201 Section 55(2) of Planning (Listed Buildings and Conservation Areas) Act 1990. 202 The author noted that Section 42(2) of National Heritage Act 2005 provided a very similar provision that allows the commission to carry out repair work if the Commissioner is satisfied that reasonable steps are not being taken for properly preserving a listed monument. The literal interpretation of the section means that the law does not extend to listed building because the term “monument” is used explicitly. The case of Dupont Steel v Sirs [1980] 1 WLR 142 held that the “where the meaning of the statutory words is plain and unambiguous as an excuse for failing to give effect to its plain meaning because they consider the consequences of doing so would be inexpedient, or even unjust or immoral”. However, the author views that this can bring out odd results because the Commissioner may only exercise power to “monument”, but not “buildings” under the same circumstance. In practicality, most monuments in the country are state owned, as compared to buildings where private owners are willing to hold and exploit. Therefore, the author suggests a purposive approach to promote the purpose underlying the legislation. Section 17A of Interpretation Acts 1948 & 1967 has expressly strengthened the usage of purposive rule:” In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose of object”. The author argues that the Commissioner should be allowed to carry out compulsory repair work in listed building. 203 R. Abdul Rashid, A.G. Ahmad, “Overview of Maintenance Approaches of Historical Buildings in Kuala Lumpur- A Current Practice”, (2011) 20 Procedia Engineering 20 425-434, at page 427 The absence of the enforcement of scheduled or periodic inspection by the authorities on historical buildings is the main issue associated with the decaying condition of the historical buildings. 204 Natasha Khalil, “Performance Analysis of Government and Public Buildings via Post Occupancy Evaluation”, Asian Social Science, (2008) 103-112, at page 110
- 40 -
It is also important for NHA to set out the minimum standards of maintenance so that immediate
actions can be undertaken in any event of breach of the owner’s duty. The standard ascertains what
accounts to “failure” to keep Heritage Site in good repair as required in Section 42(1).
Compulsory Purchase
United Kingdom
Where it appears to the SofS that reasonable steps are not being taken for the proper
preservation of a listed building, he may authorize the local planning authorities to acquire it or acquire
it himself205. The compulsory acquisition proceeding may only be started at least two months after the
owners have been served with a “repair notice”206.
Repairs Notice
Local authorities or SofS will serve a repair notice on the owner of a listed building specifying
those works which it considers reasonably necessary for the proper preservation of the building. The
notice must also explain the possibility of compulsory acquisition if the owner fails to carry out the
repairs207.
Compulsory Purchase Order
In the case of owner’s inaction208, at the end of two months, compulsory purchase proceeding
may commence. Compulsory acquisition follows the usual procedural rules prescribed by the
Acquisition of Land Act 1981.
205 Section 47(1) of Planning (Listed Buildings and Conservation Areas) Act 1990. Section 47(3) of Planning (Listed Buildings and Conservation Areas) Act 1990 provides that Historic England has to be consulted if the building is situated in England. 206 Section 48 of Planning (Listed Buildings and Conservation Areas) Act 1990. 207 Section 47 of Planning (Listed Buildings and Conservation Areas) Act 1990. 208 On the contrary, if the owner undertakes the work specified as necessary in the notice, the authority or Secretary of State may at any time withdraw a repairs notice in accordance to Section 48(4). Compulsory acquisition is no longer available because under Section 47 of Planning (Listed Buildings and Conservation Areas) Act 1990, the power to acquire a listed building only arise “where it appears to him that reasonable steps are not being taken for properly preserving” the building.
- 41 -
Comparison and Application in Malaysia
In status quo, the Commissioner is allowed to acquire heritage site209. However, unlike the UK
position, the provision is not designed specifically to respond to circumstances where listed buildings
are falling into a state of disrepair and neglect (see appendix Table 8). The threat of compulsory
purchase by notice may also deter the owners from neglecting their responsibility.
The author suggests that the law should allow the Commissioner in dire situations to acquire
listed buildings that are not properly cared for. The principle underlying compulsory purchase is to
conserve heritage buildings for public good. Buildings that are compulsorily purchased so that the
Commissioner may rehabilitate and restore it.
However, the author agrees Commissioner should exhaust all alternatives before resorting to
compulsory purchase. This is because the cost of purchase and subsequent maintenance is potentially
problematic and expensive.
209 Section 38(1)(b) and Section 38(1)(c) of National Heritage Act 2005
- 42 -
CHAPTER 5
CONCLUSION
5.1 Adequacy of National Heritage Act 2005
NHA created a legislative framework that covers different aspects of conservation work:
1. Heritage buildings are registered according to guiding definition in the Act.
2. Listed and unlisted buildings surrounding Heritage Site are protected against unauthorized
development.
3. Listed building are protected from the neglect of the private owner.
4. Heritage conservation are incorporated in urban planning because the Commissioner are
required by law to advice the local planning authorities on heritage matters.
5. Funding may be provided to the private owners for conservation work of listed building.
6. Guideline on the management of listed and unlisted building surrounding Heritage Site are
provided in the Conservation Management Plan.
7. Heritage buildings may be nominated by the public as National Heritage.
However, the strength of the listing system is limited by the inconsistencies of judgment and
decisions as to what amounts to “cultural heritage significance”. Secondly, the adequacy of source of
finance is dependent on the allocation from the government. The effective implementation of
conservation work is thus, still a challenge. Thirdly, the enforcement of the law requires the State
Authority and local planning authority to be cooperative with the Commissioner.
This author therefore provides suggestion to improve NHA’s ability to address the issues:
1. A comprehensive guideline that provides interpretation to heritage values should be provided.
2. Alternative sources of funding (i.e. investment and rent from leasing heritage site) should be
utilized by the Commissioner. Various alternative conservation models such as the public-
private partnership should also be empowered by the law so that the Commissioner may explore
other means to bring in private funding.
3. Statutory duty should be imposed on local planning authority to take into account conservation
policies in granting planning permission and development order.
The comparative study with United Kingdom shows that NHA was indeed well done because
it provides all the essential legal control for heritage conservation in Malaysia. NHA was found to be
effective, despite it having some limitations in practice. It is also important to acknowledge that the lack
- 43 -
of federal listing protection does not equate to the destruction of the heritage place, but may still invite
conservation under State law and local governments’ guidelines.
5.2 Author’s Final Note
The survival of heritage buildings in cities is highly dependent on the effectiveness of the
heritage legislation to overcome the constraints of development pressure. The government should make
good use of NHA and show the political will in enforcing the law.
The author recalls the words of two respected men:
“These old buildings do not belong to us only, they belong to our forefathers and they will
belong to our descendants unless we play them false. They are not in any sense our own property to
do with as we like with them. We are only trustees for those that come after us.”
-William Morris (editor of The American Heritage Dictionary)
“Without heritage, civilization is gone and developing states will be detached from history.”
-Datuk Seri Rais Yatim (Minister of Culture Arts and Heritage, 2004-2008):
ix
BIBLOGRAPHY
1. List of Statutes
Malaysian Statutes
1. Antiquities Act 1976 (Act 168)
2. Federal Constitution
3. Federal Territory Planning Act 1982 (Act 267)
4. Interpretation Acts 1948 & 1967 (Act 388)
5. Johore Enactment No.7 1988
6. National Heritage Act 2005 (Act 645)
7. National Land Code 1965 (Act 56)
8. Penang Heritage Enactment 2011
9. Sarawak Cultural Heritage Ordinance 1993
10. Town and Country Planning Act 1976 (Act 172)
11. Urban Development Corporation Act 1971 (Act 46)
United Kingdom Statutes
1. Antiquities Ordinance 1951
2. Enterprise and Regulatory Reform Act 2013
3. National Heritage Act 1983
4. Planning (Listed Buildings and Conservation Areas) Act 1990
5. Planning (Listed Buildings and Conservation Areas) Regulation 1990.
6. Town and Country Planning (General Permitted Development) Order 1995
7. Town and Country Planning 1970
8. Town and Country Planning Act 1995 (Revised) (Act A933)
2. List of Cases
1. Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418
2. Barnwell v East Northamptonshire DC [2014] EWCA Civ 137
3. Bath Society v Secretary of State for the Environment and Hammercrest Developments Ltd
[1991] 1 W.L.R. 1303
4. Chu Hoi Dick and Ho Loy v Secretary for Home Affairs HCAL 87/2007
5. Debenhams PLC v Westminster City Council [1987] A.C. 396
6. Dupont Steel v Sirs [1980] 1 WLR 142
x
7. Iveagh v the Minister of Housing and Local Government [1964] 1 Q.B. 395
8. Lakin Ltd v Secretary of State for Scotland [1988] SLT 780
9. Pang Soo v Tong Ah Company Sdn Bhd [2010] 2 CLJ 482
10. R (Bankcroft) v Secretary of State [2005] JPL 144
11. R v London Borough of Camden ex p Comyn Ching and Co [1983] 47 P. & C.R.
12. R v Secretary of States ex p Newprop [1983] J.P.L 386
13. Ridge v Baldwin [1964] AC 40
14. S Kulasingham & Anor v Commissioner of Lands, Federal Territories & Ors [1982] 1 MLJ
204
15. Shimizu (UK) Limited v Westminster City Council [1996] 3 P.L.R. 89
16. South Lakeland DC v Secretary of State for the Environment and Halpin [1993] J.P.L. 644
17. The Mayor and Burgeses of the London Borough of Harrow v Secretary of State for the
Environment [1991] J.P.L. 137
3. Parliamentary Debates
1. Parliamentary Debates, Representative, Eleventh Parliament, Second Session, Second Meeting,
7 December 2005
4. Reference Book
1. Ali Raza Soomro, Heritage Study of Muslim World, (Selangor: IIUM Press, 2011)
2. Gordon Campbell, Heritage Law and Policy, (England: Palladian Law Pub, 2001)
3. Tan, Kelvin, Constitutional Law in Malaysia and Singapore, (Singapore: Butterworth Legal
Publishers. 1991)
4. Roger W Suddards and June M Hargreaves, Listed Buildings: The Law and Practice of Historic
Buildins, Ancient Monuments and Conservation Areas, (London: Sweet & Maxwell, 1996)
5. Teo Keang Sood and Khaw Lake Tee, Land Law in Malaysia: Cases and Commentary,
(Petaling Jaya: Butterworths Asia, 1995)
5. Journal Article
1. Arazi Idrus, Faris Khamidi, Mahmoud Sodangi, “Maintenance Management Framework for
Conservation of Heritage Buildings in Malaysia” [2010] Modern Applied Science 66-77
2. Chui Hau Man and Tsoi Tan Mei, “Heritage Preservation: Hong Kong & Overseas Experiences”
August 2013
xi
3. Theodore, Jess, “Over My Dead Property! Why the Owner Consent Provisions of the National
Historic Preservation Act Strike the Wrong Balance between Private Property and Preservation”
[2008] Georgetown Law Historic Preservation Papers Series Paper 30
4. Yuszaidy Mohd Yusoff, Hanapi Dollah, Ab Samad Kechot and Mohamed Anwar Omar Bin,
“Pembangunan Warisan di Malaysia: Tinjauan Umum Tentang Dasar” [2010] 5 Jurnal Melayu
277-283
5. Yuszaidy Mohd Yusoff, Hanapi Dollah, Ab Samad Kechot, “National Heritage Act, 2005: A
Review” [2011] 8 Jurnal Melayu 173-188
6. Yuszaidy Mohd Yusoff, Hanapi Dollah, Ab Samad Kechot, “Perlindungan Harta Warisan:
Keberkesanan Usaha Pemuliharaan dan Pemeliharaan dalam Pembangunan Negara” [2013]
Malaysian Journal of Society and Space 64-77
6. Conference Paper
1. Adibah Awang, “A Critical Assessment of Provisions of the Federal Constitution with regard
to Federal-State Relationship on Land Law”, International Conference of Contemporary Issues
of Law, Syariah & Legal Research, December 14 2008
2. Nurulhuda Adabiah Mustafa and Nuraisyah Chua Abdullah, “Preservation of Cultural Heritage
in Malaysia: An Insight of the National Heritage Act 2005”, Proceedings of International
Conference on Tourism Development, February 2013
3. Paiman Bin Keromo, “The National Conservation Programs for National Heritage in Malaysia”,
2nd IFSAH 2003 & International Symposium on Asian Heritage”, August 22 to September 12,
2013
4. Shahrul Yani Said, Hasnizan Aksah, Elma Dewiyana Ismail, “Heritage Conservation and
Regeneration of Historic Areas in Malaysia”, Asia Pacific International Conference on
Environment-Behavior Studies, September 4-6, 2013
5. Siti Nor Fatimah, Zainah Abidin Akasah, Mohammad Ashraf Abdul Rahman, “Masalah dalam
Pemuliharaan Bangunan Warisan di Malaysia”, Proceedings of Social Science UNIMAS 2011,
April 20-21, 2011
7. Newspaper Articles
1. Athi Shankar, “Why Three Versions on Heritage Building”, FMT News, 6 September 2014, 5
June 2015
2. Bavani M, “Plan to Redevelop Vivekananda Ashram is Put on Hold”, The Star Online, 21
January 2015
3. Bavani M, “Treasuring Our History”, The Star Online, 1 January 2015
xii
4. Clara Chooi, “No Heritage Site for Pudu Jail, Development will Commence”, 21 June 2010
5. Ida Lim, “Heritage Park Status Only Way to Save Landmark Stadium, MPs Say”, The Malay
Mail Online, 10 October 2013
6. John Grafilo, “Keeping the Past Perfect”, Southeast Asia Globe, 26 September 2013
7. Lee, Joy, “There’s Money in History”, The Star Online, 21 August 2013
8. Lim Ai Lee, “Heritage at Crossroads, The Star Online, 2 September 2012
9. Pathma Subramaniam, “Kedah Government Ignored Request to Gazette Lembah Bujang as
National Heritage”, 4 December 2013
10. Ronald Robert, “Bok House Demolition Raises Key Issues”, The Sun Daily, 7 April 2007
11. Sonia Ramachandran, “Another Rally in Brickfields Today Against Decision of Ashram’s
Trustees”, 5 April 2015
12. Tan Sri Ahmad Sarji Abdul Hamid, “Enforce laws to ensure protection of heritage buildings”,
New Straits Times, 5 September 2001
13. Woon, Leven, “A Great Wall to Preserve Jalan Sultan”, FMT News, 2 February 2013
8. Internet Website
1. Department of National Heritage, http://www.heritage.gov.my/
2. Historic England, https://www.historicengland.org.uk/
3. The Getty Conservation Institute, http://www.getty.edu/conservation/
.
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APPENDIX
Table 1 Comparison of the Listing System in Malaysia and the UK
Table 2 Comparison of the Emergency Procedure in Malaysia and the UK
Aspect Malaysia United Kingdom
State list National Heritage Register National Heritage List for
England
Criteria “Cultural Heritage Significance” and
Section 67(2) of NHA 2005
Principles of Selection for Listed
Buildings (March 2010)
Categories Heritage Site and National Heritage Grade I, Grade II and Grade III
Administrative right
to appeal
Yes No
Aspect Malaysia United Kingdom
Emergency
procedure
Interim Protection Order Building Preservation Notice
Duration 90 days (subject to extension) 6 months
Effect Subject to conditions specified by the
Commissioner
Protected as if the building is
listed
Administrative right
to appeal
No No
Contravention Criminal offence Criminal offence
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Table 3 Comparison of the Conservation Area in Malaysia and the UK
Table 4 Comparison of Criminal Penalties of Unauthorized Work in Malaysia and the UK
Aspect Malaysia United Kingdom
Conservation Area Heritage Site and its vicinity Area of special architectural or
historic interest
Unlisted building owner’s
right to object
No No
Management Conservation Management Plan Proposals
Public consultation in
management
Yes Yes
Urban Planning Advice and coordinate with local
planning authority to implement
CMP
Local planning authorities
designate Conservation Area
Aspect Malaysia United Kingdom
Prohibition Works without approval of the
Commissioner
Works without Listed Building
Consent
Contravention of the
prohibition
Fine and imprisonment Fine, imprisonment and Listed
Building Enforcement Notice
Defense Available only for National
Heritage
Available
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Table 5 Comparison of the Grant of Planning Permission in Conservation Area in Malaysia and
the UK
Table 6 Comparison of Development Work Consent Application in Malaysia and the UK
Aspect Malaysia United Kingdom
Authority The Commissioner Local planning authority and
Secretary of State
Administrative
right to appeal
No Yes2
Contravention Criminal Offence Criminal Offence
1 Under Section 78 of the Town and Country Planning Act 1990 2 Section 20 of 1990 Act.
Aspect Malaysia United Kingdom
Buildings Listed and unlisted buildings Listed and unlisted buildings
Permission from
authority
Approval from the Commissioner Planning Permission from local
planning authority
Controlled
activities
All activities affecting the
Conservation Area
Demolition
Administrative
right to appeal
No Yes1
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Table 7 Comparison of Compulsory Repair Work in Malaysia and the UK
Aspect Malaysia United Kingdom
Duty to maintain listed buildings Imposed by law No statutory obligation
Compulsory repair Not provided Urgent Working Notice
Administrative right to appeal - No
Cost of repair - Recovered from the owner
Objection to recovery of expenses
of works
- Yes3
Table 8 Comparison of Compulsory Purchase in Malaysia and the UK
Aspect Malaysia United Kingdom
Condition to purchase or
acquire listed buildings
Not specified Listed building not properly
taken care of
Procedure Land Acquisition Act
1960
Repairs Notice and Acquisition
of Land Act 1981
Right to object No No
3 Section 55 of 1990 Act. The owner may within 28 days of the service of notice to recovery expenses of work make representations to the Secretary of State to question the necessity for the preservation of the building, the duration of the works, the amount of expenses specified or the recovery of the expenses would cause hardship to the owner.
xvii
Interview 1: Interview with Prof Dr. A Ghafar Ahmad, lecturer from School of Housing, Building
and Planning of Universiti Sains Malaysia on 23 March 2015.
Interview 2: Interview with Mdm. Nurul Majdiah Binti Mohamad Sayuti, legal officer from
Department of National Heritage on .
xviii
Interview 1
Interviewer : Goh Poi Sze
Interviewee : Prof Dr. A. Ghafar Ahmad
Dates : 23/3/2015
Place : Grand Bluewave Hotel, Persiaran Perbandaran, Sec. 14, 40000 Shah Alam,
Selangor
Goh:
What is the relationship between development and conservation of heritage buildings in Malaysia?
How do we balance the both?
Prof`Ghafar:
Conservation of building is a big umbrella that includes many different approaches like preservation
restoration, adaptive reuse, maintenance and reconstruction. The main objective of all these methods is
to allow the building to be functional and not inhabitant. Conservation in fact increase the value of a
building, especially if it is historical and becomes a tourist attraction in the area. The balance of the
development and conservation is a big challenge. The question that we should ask ourselves is what is
the value of the heritage building in the area? If the historical building has a significant value in the area,
the building should be kept and not demolished. The decision made is based on the National Heritage
Act. Section 67 provides the consideration that a Minister should take into account. For example,
subsection (c) scientific and technical innovation or achievement. Eastern and Oriental Hotel in Penang
has a century-old lift, National Heritage Department gazetted the structure because it shows the
technical innovations that Malaysia has 100 years ago. After that, we should look at section 46. The
section requires the Commissioner to come out with a conservation management plan, CMP. This is an
important document, a “master plan” that protects the significant value of the heritage building. If you
want to develop the area/ add new level in the building/ build a vertical element blocking the main
street/ repair the building, you must refer to the CMP. The CMP will tell you all the do’s and don’ts.
The CMP are revised once in 5 or 10 or even 15 years because as time passes, changes are needed to
accommodate the change in climate, or because, maybe after 10 years, we do not have timber anymore,
then we need to use other material as substitution. Section 112 and section 114 provides offences. For
example, a developer builds a new building besides a national heritage without approval of the
Commissioner. The developer must get a return approval from the commission before building. “Return
xix
approval” here means you must submit a design proposal, official letter to apply for development. Then,
the commission has a team of people that will examine whether the development will affect the heritage
building and decide whether to give the approval.
Goh:
How about the local authority?
Prof Dr. A. Ghafar Ahmad:
Local authority normally issues guidelines to control development in heritage areas. But these
guidelines are not laws. For example, DBKL Structure Plan which I was asked to help in drawing up
the guidelines. DBKL appoints consultant to advice on how to treat heritage buildings. The guidelines
allow developer to develop according to the guideline. These conservation plan allows development in
a modest and controlled manner. The experience of George Town and Malacca is significant because
the plan cover a big area including more than 10,000 shop houses. This is very difficult. Penang has a
Special Area Plan that has Heritage Impact Assessment (HIA).
Goh:
What is HIA?
Prof Dr. A. Ghafar Ahmad:
It functions like the Environment Impact Assessment for normal development project. It is a report
prepared by a consultant to examine the impact of the development towards the heritage area. For
example, skyline of the city, traffic, tourism sector and sound pollution. The maximum height of
buildings in the core zone in Penang is of 18m whereas in Malacca, it is 40 feet. Outstanding Universal
Value is another important standard that Penang and Malacca has to conform to so that they continue
to be recognized as World Heritage Site. In the case of Malacca, there is 3 universal values that the local
authority has to maintain: 1. the characteristics of a port city- so it has to protect the gudang, river, jetty
and river mouths 2. Multicultural society, which is an intangible heritage of our society 3. Collection of
shop houses- Malaysia has the most number of shop houses outside of China. As a whole, working in
the conversation of buildings has to be very versatile because it involves all kind of professions, we
need to talk to planners, architect, engineer, land surveyor, quantity surveyor and interior designer.
Goh:
I can see from the Act, Section 3(2) says that a minister cannot issue policies if the matter is under the
jurisdiction of the State unless the State Authority has given its consent. Is this a problem to the National
Heritage Department when they want to gazette a heritage building in a state land?
Prof Dr. A. Ghafar Ahmad:
xx
DBKL has their own list of heritage building with different categories. Category 1 of the list normally
contain all the national heritage gazetted by the National Heritage Department. The other categories
have Heritage Site that was not gazetted but the local authority found it worth of protection. We know
that a law is more powerful than local guidelines, so, whenever local authority has to approve any
development project of the national heritage, they will still go to the National Heritage Department. For
section 3(2), we know that land matter is under the state jurisdiction, so National Heritage Department
must get permission from who administer it, for example the Chief Minister of Penang. They cannot
enforce the law if it is not allowed by the Chief Minister. Once the approval is gotten, National Heritage
Department will directly go to the Heritage Site and do their work. Take an example of Sungai Buloh
Leprosy Settlement. This is a hospital built in the 1960’s where people suffering from leprosy were
secluded and formed their own community. This place has great historical significance as it is 1 of the
only 4 countries including Brazil, China that have this centers. This hospital shows how medicine has
developed in Malaysia. However, in around 2007, UiTM found the site a suitable place to build a
medical college. After obtaining consent from the Selangor government, the Commissioner quickly
intervene to stop the excavation. National Heritage Department has to follow the SOP. National
Heritage Department also has to obtain the consent of the owners of the land. If the land is owned by a
trust, they will need the consent of the trustee. This process normally takes up more than 12 months.
Goh:
How about funding from government, is the funding sufficient for all the conservation work?
Prof Dr. A. Ghafar Ahmad:
We can never have enough money. The government will provide RM30 million to the Heritage Fund
and top up when it has less than RM30 million. National Heritage Department don’t have enough
resources to do all the work throughout Malaysia. This is why their focus is only to protect gazetted
building. Conservation of privately owned historical buildings is the job of the private owner. We have
to understand that the status of “Heritage Site” and “national heritage” is only a recognition to the
building, unless the Department buys it up. For example, Rumah Teh Bunga and HSBC Bank building
in Malacca where the Department bought the building from private owners.
Goh:
What do you think is the main obstacle to historical building conservation in Malaysia?
Prof Dr. A. Ghafar Ahmad:
There is a lacking of awareness and knowledge among those involved in conservation. We need more
architect, engineers and contractors that know how to do work in a heritage building. After any form of
work is made in a heritage building, we cannot revert the building back to its state of authenticity. We
xxi
see examples of efforts by the CIDP (Construction Industry Development Board Malaysia). They
provide license for contractors that attend conservation workshops teaching them the principles and
methods in heritage conservation. Malaysians should learn how to do conservation work ourselves, not
inviting foreigners into Malaysia and let foreigners interpret our history and culture because they simply
don’t know us.
Goh:
Since conservation work is expensive, what are the incentives provided to private owners to encourage
them to conserve their buildings?
Prof Dr. A. Ghafar Ahmad:
They are clearly spelt out in the National Heritage Act but it is a norm in Malaysia that incentives are
given. For example, incentives in the form of technical advice, free consultation, subsidy, discount on
tax and land transfer development right.
Goh:
What is land transfer development right about?
Prof Dr. A. Ghafar Ahmad:
It means transferring a development project to other places which is not a Heritage Site. However, this
is not practiced in Malaysia because our land property is too expensive. This is very popular in Australia
because they have enough land for this. In Penang, Malaysia government paid compensation to
developer that obtained a lawful development license before Penang become a heritage city. Local tax
deduction will depends on the local authority. Private owners can also apply for fund from the federal
government for conservation work. For example, St George Church got the fund and completed its
repair project. Private owners just have to realize that they can earn money from heritage tourism in
heritage area. The area provides attraction that will bring in tourists from all over the place. When tourist
comes to Malaysia, they will necessarily have to spend money for hotel, food, transportation and etc. It
is found statistically that a UNESCO city can attract 4 times more number of tourist. For example in
Paris, their government is very smart in urban planning. They put all their high rise building in a
different area, making sure that the core tourist site are well preserved. But still, other aspects of the
city like garbage management and safety has to be maintained also.
Goh:
How well do you think Malaysia is doing in heritage conservation as compared to other countries?
Prof Dr. A. Ghafar Ahmad:
xxii
We should be very proud of our National Heritage Act because it is one of the best conservation law in
the world. You don’t see other countries including underwater heritage in their law. For example,
Singapore because their government need the ocean for landfill to expand the size of their country.
National Heritage Act also covers archaeological site, intangible heritage, and living treasure.
Goh:
At last but not least, do you have any suggestions as to how we can improve our National Heritage Act?
Prof Dr. A. Ghafar Ahmad:
The government was in fact considering an amendment to the Act, our minister has come up with plans
to ratify and incorporate UNESCO Convention of Intangible Cultural Heritage 2003. Our minister
recognized that although the Act provides protection to our intangible heritage, the details are lacking
in our Act. Another thing that you might want to look at is about how to include the concept of
“authenticity” and “integrity” in conservation practices. Take the case of 218 Macalister where acting
as the consultant, I proposed the use of dismantling and reconstruct method to conserve the building
but the proposal received opposition from the public because they did not quite understand the approach.
In fact, this approach were recognized in the Nara Document on Authenticity. As opposed to the western
approach in conservation where conservation means the preservation of the building alone, the Japanese
argued that the art of construction of a heritage building is also a heritage. Therefore, they allow the
younger generation to learn how to dismantle and reconstruct a heritage building. The Act should
provide a legal basis and guideline for us so that we can bring forth new and useful conservation
methods in Malaysia.
xxiii
Interview 2
Interviewer : Goh Poi Sze
Interviewee : Madam Nurul Majdiah Binti Mohamad Sayuti
Dates : 11/5/2015
Place : Department of National Heritage, Ministry of Tourism and Culture, Istana
Negara Lama, Jalan Istana 50460 Kuala Lumpur.
Goh:
Section 18 allows the establishment of Heritage Committee. What is the function of the committee?
Mdm Nurul:
Many committees are set up according to their different expertise, some are specialized in buildings,
archaeological sites, culture dance and etc. They assist the National Heritage Council by giving and
assessing proposals of conservation work. These committees consist of lecturers, NGO and
conservation practitioners. After the discussion, the Council will then talk to the Commissioner so that
the Commissioner can make a decision whether to proceed with the conservation work.
Goh:
Does the requirement of state consent in designating Heritage Site becomes a hurdle to the Department
in conserving heritage building in different states?
Mdm Nurul:
Conservation of heritage is in the Concurrent List of the Constitution. Therefore, the State Authority
has an equal right as the federal government in making conservation decisions. It is in fact a problem
when the State Authority refuses to give consent because they view federal listing bars the state
government from developing the heritage property. This issue is apparent when we look at the Register.
There is no listed building from the state Pahang. Many heritage building in Penang was not listed as
well. Penang successfully attained the status of UNESCO World Heritage Site because at the time of
application, it was not a requirement that the heritage city receives the federal government recognition
in the federal listing system.
Goh:
How does the Department gets funding?
xxiv
Mdm Nurul:
The two sources of funding comes from Heritage Fund and Malaysian Annual Budget. We will
normally use money coming from the budget first. The appropriation from Parliament is a revolving
fund of RM30, 000, 00.
Goh:
Is the money sufficient to support conservation work?
Mdm Nurul:
No, definitely no. We will normally prioritize the expenditure in Section 21(a) and Section 21(b)(i) and
(ii). We do a lot of research work on heritage buildings, campaign to raise awareness and exhibitions.
Goh:
Looking at Section 28 of the Act, are there examples where objection to designation of Heritage Site
were raised?
Mdm Nurul:
Yes. For example, BUnited Kingdomit Nanas Old Covenant and Sungai Besi Lapangan Terbang
Kawalan Traffik and recently the Vivekananda Ashram. The primary reason of objection is because the
owners want to develop their land in the future. However, the question is then whether listing the
building really hinder development? Works can still be done to the building as long as it does not
damage the existence of the building and it should not amount to an obvious alteration of the structure
of the building. Development work also requires permission from the Commissioner. This is important
so that the Commissioner can provide advice to the development work.
Goh:
Has the Department given any grant or loan to private owner to conduct maintenance work?
Mdm Nurul:
No. The Department will not give money to the owner but conduct the work ourselves. This is easier
because even if the Department give out such funding, the Department still has to advice and monitor
the maintenance work. Therefore, it is easier for the Department to do the work ourselves.
Goh:
How does the Conservation Management Plan function?
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Mdm Nurul:
The Conservation Management Plan will establish a conservation unit to oversee and monitor the
conservation work in the area. It also provides the dos and don’ts such as the maximum height of new
buildings in the area. It acts as a guideline to all future development work. However, the Department is
still unable to do conservation management plan for all the listed buildings. There are examples of
conservation management plan that you can refer to from Penang and Malacca.
Goh:
What is the difference between National Heritage and Heritage Site?
Mdm Nurul:
National Heritage are heritage that has significance towards the whole country whereas Heritage Site is
more localized.
Goh:
Why is the defense of urgency provided in Section 114 but not Section 112?
Mdm Nurul:
I suggest that the two section should be read together so that the defense of urgency is also applicable
for Section 112. I find that the Act is sometimes inconsistent and unclear and this is one of the example
of the problem. Other than that, I feel that the offence in respect of National Heritage should attract
higher penalty than offence in respect of Heritage Site because National Heritage is of a higher status.
A maximum of RM50, 000 also seems to be like a nominal sum. The penalty is too little when
comparing to the profit of a development project.
Goh:
Do you have any comments towards the National Heritage Act?
Mdm Nurul:
I feel that this is a good attempt to cover all aspects of the law in one piece of legislation. However,
there is still room of improvement to include more details in the Act. The wordings of the Act should
also be look into to avoid confusions.