Implementation Issues on Planning control According to the Provisions ofTown and Country Planning Act 1976 in Malaysia

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Rhan See CHUA and Atsushi DEGUCHI

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Implementation Issues on Planning control According to the provisions ofTown and Country Planning Act 1976 in Malaysia

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:lT;Tlitsushi DEGUCHI.-

Planning control, as provided under Town and Country Planning Act 1976 (Act 172), is an essential featurein Malaysian urban plandng system. However, planning conhol implementation in Malaysia has been chal-lenged by the issue of non-compliance with the Act. This paper focuses on tlvo key non-compliance issues;planning not conforming to local plan, and development without or contratry to planning permission and con-straint faced by planning authority to handle this situation. Through the study of documents and data, possiblecauses and its implication towards planning system, planning authority and planning profession are also exam-ined. Finally, some forms ofmeasures are recommended to tackle these non-compliance issues faced by Act 1'12.

Kqtvords: Malaysia, Urban planning system, Town planning law, Urban detelopmen, Deyelopment permission-< v- :-/7, trtfiF+Efrtjtr, Alffi;+Eit, ffifrfrtX, ffift-'a+E

I.INTRODUCTION1.1 Background

Planning control is one ofthe key features in Malaysianplanning system. As one ofthe rapidly developing nations,Malaysian Govemment put great emphasis in providingeffective planning control system to achieve sustainabledevelopment goals.

ln Mdaysia, planning control is provided under Part IVofTown and Country Planning Act 1976, from seclion l8to 31A. Town and Country PlanningAct 1976 is also com-monly known as Act 172. Planning control mechanismin Acl172 is referred to as "planning permission". Plan-ning permission is defined as 'permission granted, with orwithout condition, to carry out development'. It is alsoprovided in Act 172 that no person, other than a local au-thority, can start or carry out development without plan-ning permissiont'1. Nevertheless, there are instances whenplaruring permission implementation were not observed onthe ground. This is to say there are developments whichhappened without complying to planning control require-ment ofAct 172.

Non-compliance to planning control requirement couldcreate long term negative impacts to many aspects ofurban life and planning. Firstly, the objective to createconducive and quality living condition through system-atic planning could be jeopardised. Second, planning lawcould be viewed as uneffective as it fail to be followed.Third, people's respect for urban planner could diminishas it fail to improve common living condition. Finally,

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urban govemance as a whole could lose its credential as

the implementor and manager ofdevelopment.With this implications in mind, it is therefore important

to examine and understand why non-compliance to plan-ning control provisions occurs. Only with this understand-ing, planning authorities at the national, state and locallevels can improve on existing weaknesses, and ensure amore effective planning control system for the future.1.2 Past Researches

In recent years, there is a clear increase in the report-ing of planning issues in local media in relation to Act172. These reporting are mostly advocated by interestedindividuals and Non-Govemmental-Organisations (NGO)i2lFlt4l15I6t{?lt3lteIr0l.

Besides reporting by media, there are also a numberof published papers on planning control topic. However,the discussions in these papers are in a way or othel tiedup with development subjects such as land managementtrrltr2ltrrl; environment protectiont'olt'tl and GeographicaiInformation system (GIS) in local authorityllult''1. Papersspecifically discussing planning control issues in relalionto Act 172 ate rare. This could be due to the fact that plan-ning law is relatively young (since the enforcement in1976), compared with other more established and widelyused legal instruments, like National Land Code 1965 (Act56), that govems all land mafters in Malaysia. The otherreason could also be that planning control itself is not asimple subject, as planning authorities here are faced withmany emerging issues. To discuss planning control issuewith Act 172, which is also a volume subject by its own,could deemed too hea\y an endeavour by many research-ers.

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Howeveq there was an attempt by Mohd Azam MohdAbid lrom the Fedeml Department of Town and CountryPlanning Malaysia (FDTP) in 2006 to analyse the effec-tiveness ofAct 172 for planning and control purposest'tl.But discussion on planning control aspect was not done indetail. In Malaysia, data and detail information on plan-ning control compliance arenot easily available. Curently,there is no systematic attempt to monitors the implemen-tation issues of Act 172 at national, states or local levels.The Federal Department of Town and Country PlanningMalaysia prepared discussion papers from time to time onthis subject. However the content of these papers is notopen to public, which means they are for department use

only.By looking at the gradual inmease in media repofting

about planning law and development issues, and activediscussions on this subject in a number ofpublic forumst''1,it is expected that more research will be done focusing onAct 172 and its issues in the near future.1.3 Objectives

In this contect, this paper intends to achieve two objec-tives:l) To clarif, two key non-compliance issues faced by Act

172 on planning conrrol matters.2) To propose ways of improvement to meet the actual re-

quirement ofAct 172.1.4 Research Methodology

This paper is organised into four parts. Part one ex-plains the overall background of the study, past research,research objectives and methodology in preparing thispaper. Part two concentrates on providing a general un-derstanding on the planning system in Malaysia, whichinclude the adoption of planning law - Act 172, planningheirarchy and planning mechanisms. Subsequently, inpart three ofthis paper, four provisions from Part IV ofAct172 were highlighted, and discussed in relation to issuesconceming planning control. Issues in group one focus ondevelopment contrary to development plans (section l8).While group two highlight issues involving developmentwithout or contrary to planning permission and weakness-es in enforcement (Section 19, 20 and 26).

During the course of dicussions, each group of issueswas analysed in detail. This includes looking into theorginal requirement of individual sections, detailing of theissues, the likely causes and possible implications towardsexisting planning system, Act 172, planning authority andplanning profession. Then, to conclude the analysis, sev-eral improvement are suggested to move forward from theexisting situation. Examinalion of issues in this paper isdone mainly by assessing the limited amount of informa-tion and data available on hand to describe non-compli-ance issues facing Act 172.

2. URBAN PLANNING SYSTEM IN MALAYSIA2.1 Planning Structure

Currently in Malaysia, planning laws and systems ap-plied in West Malaysia, known as Peninsula Malaysia and

Fig. I Planning Laws in Malaysia

In West Malaysia, planning system is governed by Act172 in allthe Federated States. Whereas in Kuala Lumpur,the capital city, planning matters are ruled by Federal Ter-ritory (Planning) Act 1982 (Ac1267). Kuala Lumpur uses

a separate planning law because the administration set-upofthis city, together with Putrajaya, which is the new Fed-eral Govemment administrative centre, is different fromall other local authorities in West Malaysia. Kuala Lumpurand Putrajaya come under the direct j urisdiction of Minis-try of Federal Territory. While other local authority comeunder the comgrand ofindividual State Govemment. Dueto this special position, a separate planning law is deemednecessary.

Under Ac1 172, planning system in West Malaysia is divided into four hierarchies; namely federal, regional, stateand local. At local level, planning includes district, city,town, village and rural area. The backbone ofthis plan-ning system underlay by Act 172 consist ofthe develop-ment plan mechanism, planning control mechanism andappeal board mechanism.2.2 Town and Country Planning Act 1976 (A,ct 172)

Act 172 was enacted underthe provision ofArticle 76(4)ofthe Malaysian Federal Constitutionl2'l by Parliament in1976. to govems all planning related matler5 in Wesr Ma-laysia. Under the Constitution, town planning came underthe concurrent list{t'1. This means, it is the joined respon-sibility of both Federal and State Govemments.

There were originally nine parts and 59 sections in Act172. Afler four subsequent amendments in 1993, 1995,2001 and 2007, i1 now contains 12 main and sub-parts.Act 172 mainly covers two areas ofprovisions. First, gen-eral provisions to set up the administmtion mechanism tooversee planning conduct at federal, regional, state and lo-cal levels. Second, specific provisions to implement keyplanning control mechanism like development plans, plan-ning cgntrol, ilevelopment charge, tree preservalion order,aplreal board and purchase notice in the countryt'l (Tablel).

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those in East Malaysia are different (Fig. l).

West Mllaysir (ll St.tet Elst Malaysia (2 StatetAll srates in Wcsi Malaysia ln Sabah, Town ed Couory PlMing&t govcmcd by Act 172. ordinece (Saban Cap 1,11) is thc lesalWhile K'rala Lumpur, rhe instrdm€nt govemnrs plmingior. Incapital is mled by Federal Sarawak, the first planning law , Town andTeritory (Planning) Act Country Planning Ordinece !va! enacted int982 (Act261). 1952. But n was never used as rhe provisions

were considered impractical for rheState. Late. Land Code I 95) was adopted torules all land matteB in Sryawak. Howevet ithas limited usage in urbad plaming, for theprovisioos {e mainly forledma c.sr:'r.

Table I Provisions in Act 172

Pad II Policv and AdministrationReqional Planninq comm;nee

PaltIlB National Physical Plan

Pad III

Tree Presedaiion Order

PucbaseNolice and Acquisition ol LandPanVIIIPart lX Miscellareous Provisions

Among the amendments lo Act 172, changes in year

2001 is considered the most significant to date. The Feder-al and State Govemments' power to monitor development

has been strengthened, and regional planning was formallyintroduced into Malaysian planning system (Table 2).2.3 Planning Hierarchy

In Malaysia, planning hierarchy is divided into fourtierswith the highest hierarchy at federal level and the lowest atlocal level. There are different planning authorities at fourlevels of hierarchy. At federal level, Ministry ofHousingand Local Govemment, which houses the Federal Depart-ment ofTown and Country Planning, is the highest author-ity that formulates planning policy and set direction for thecounlry's future physical planning.

While National Physical Planning Council (\IPPC),chaired by the Prime Minister, is the highest body thatgivds advises on all key nalional planning and develop-ment undertakings.

At regional level, Regional Planning Committee is thebody that coordinates land use and infrastructure planningfor areas covering more than one state. To date, the settingup ofRegional Planning Committee is still being studiedby the govemment.

At state level, State Planning Council (SPC) is the chiefauthority that functions as planning coordinator, promoterand educator in the state. State Planning Council is heari-

ed by the executive and political head of the state calledMenteri Besar or Chief Minister.

Subsequently, at local level, local planning authority(LPA) is responsible for the implementation of planningand control of development.

Such separation of plaming functions and jurisdictionhas its advantage and disadvantage. The advantage is thatplanning responsibility is decentralised and can be imple-mented quickly on the ground. The disadvantage is thaterroneous development could happen rampantly withoutproper monitoring.2.4 Planning Mechanisms

To implement effective planning, the support ofkey and

sound mechanisms is necessary. In this case, Act 172 has

sufficiently provided for the establishment oithree mecha-nisms that become the fundamental of Malaysian planningsystem today: development plan system, planning controlsystem and appeal board system.

3. DEVELOPMENT PLAN SYSTEMDevelopment plan is an integral planning component in

Malaysia. Basically there are four types of developmentplans in relalion to the existing planning hierarchy (Fig.2).3.1 National Level

At national level, two major plans have been prepared

- the National Physical Plan (NIPP) and the National Ur-

Table 2 Act 172 and BriefYe.r Eveni.1957 Malaya gained indep€ndence fiom Britisb on 3l August. Provisions of

Pan lX ofTown Borrd Enactunent (vhich is also known as CAP137), continued to govem allplanning activities in all states. GeneralTown Plan - a zoning based plaD for toM areas, prepared under Pait ofIx ofCAP 137 continueto take effectl'?rl.

r970 Kuala Lumpur. the capital ofMalaysia has dropped Part IX ofCAF 137

on 20 August,lo be replaced bythe Energency (Essentid PowertOrdinance No.46 ofr970 on the same date. This Ordinance was usedto restore order and facilitale development after the racial incident inKuala LumDur on ll Mav 1969 t']rl.

1971 One ofthe remedial respons€s from the May l3 incidentwas theintroductio! ofNew EconoEy Policy(NEP). NEP ajmed to eradicaiepovefy and r€structur€ social-economy composition of Malaysiancocietv for the nexr 20 vears

1973 Due to theweaknesses ofceneralTotn Plan such as linited cove.age

that resulted in piece-meal developmcnt and rigidily due 1o stricizoning, are planning law was introduced in Kuala Lumpur to replacethe Emergency (Essential Powers) OrdinanceNo. a6 of1970. This lawis called Citv ofKuala LurnDur (Plannine) Act 1973 (Act 107).

1974 Kuala Lurnpur ceased to be a part ofSelangor State and went under the

FedenlGovemment on I February. Sjnce this date, Kuala Lumpur isofiicially refered !o as th€ Federal Territory of Kuala Lumpu/:'r.This citv exDended from 93 k# to 243 kmrr'?rr

1976 Towr lnd Coutrtry Plrnning Act 19?6 (Act 172)

' Act 172is tle fiIst law prepared tounityall platning Dattels inPednsula Malaysia after indep€ndence from the Britislr in I 95 7. Itis &afud to pur in place a more syslematic ard dyna$ic pladillgsystem to snppon the causes ofNEP r3'.

. lt is rnore oompreheBsive and detail to include aspects ofphysical,social and economy int! piaining systell

. This Act is applied ro all slates io Pcninsuta Malaysia o1r'€stMalavsia) exceDt Kuala LumDur which has its own Dlannina law.

1977 Act 107 was amend€d to enable tbis law to take €ffect in th€ new areas

of Kuala Lmourrrr.1982 The comins into force ofAct l?2 has given Kuala Lumpur the

opportuity to look into new plann;ng features like dre struchrre a.dlocal plan system 0rr. Due to the special administration ofKualaLunpur(unlike ali oiher local aulhorities in P€ninsula Malaysia then,

Kuala Lumpur ciry Hallcomes direcdy under the Ministry ofFederalTeritory) and the provisions ofAct 172 which are suilable only {o localauthorities established in a state, Act 172 is deemed inappropriate to beadoptedin Kuala Lumpurr:rr. Hence, a newplanninC law was dnftedfor Kuala LumpuJ based on Act 172 blue pnnt. It is called FederalTerritow lPh.ninr) Act 1982 (Act261rjr.

1993 To$n ard CourtryPlanning (Amerdment)Act 1993 (Act A866). First anendment lo Acl 172, after l7 years {oming into effecl.. Howeva, this mendnelt is coosidered B mioor one, involvinS onty

th€ insenion ofanewprovisiou otr S€werage S€wices Act 1991fAct 508). created rhe same vear.

1995 Town lndCountry Planring (Amendment) Act 1995 (Act A933). Second am€ndmedt was done in 1995, to addreseweaknexses in

€nviroffient plmnins, as a responsive measue to the iofanous1993 'Hishland Tower' incident tbat killed 48 p€ople.

. New provisioDs conceming environmeot and tree preservalion wereinsenen in P,nIV and V ofrhe A.r

2001 Town lrd Country Plarnine (AmendElent)Act 2001 (Act A1129). The third amendment \ras to tackle issues related to property sl]rplN

created durins the economv boon pdod of mid I 990's.r This ajnerdment has tle most sigrilieant implicatton to the existhg

planning system. The implicatiols includs srrensth€nins FcderalGovemmeni's role in mo tdng planning and development,preparation of national physical plan and the introduction ofrcsional Dlainin!.

2007 Tord aDd Couotry Pl!nnine {Amendm€nt) Act ?007 (Act 41313). This lates! 3mendnent ins€rting a new proyision conceming the new

Solid Wast€ and Public Cleusing Managemenl Aot 2007 [Act 672].. It was also a minor one requi.ing provisions in Aci 672 to be takcn

rnto consideration when sranuDg plannrns permis!ion.

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Srate I r 6.2lrDifti.t airv Tnvn Vill3cs2nd Rur2lArer)om d CountNPlannins Law l9?6lA.r l?,

Minisl.y o I Houin! {nd Local Co!cmnent at llamin{ Coucil i/Sz.lior ,/l Local Phnn inc Aurho Y rs€crio, J 6l

National Urbanisriion Policy aje.rio, rEf.i))

l' 1.r i: , $

Plannine Pemission fsr.ti,,r / 8-J /,,1,)

Ata. l Botd (Section 36)

Fig. 2 Malaysian Planning Ilierarchy and Development Plan System

banisalion Policies (NUP). National Physical Plan whichwas approved on 26 April 2005, is a long term nationalspatial plan that contains policies and shategies to steerphysical development in West Malaysia up to year 2020.National Physical Plan's main function is to provide spa-tial dimension io national economic policies, such as theflve-year Malaysian Plan and Outline Perspective Plan. Italso provides policy framework for regional, state and lo-cal development planningl'ul. Due to rapid development inMalaysia and the intemational scene, this plan is cunent-ly under revision after less than three years coming intoforce. One year after National Physical Plan, the govem-ment launched another national level plan - the NationalUrbanisation Policy on ll September 20061'?71. NationalUrbanisation Policy is the plan to drive, manage and co-ordinate urban development in Malaysia. It contains sixmain trusts that were translated into detailed policies andmeasures, to ensure Malaysian cities remain competitive-ness at domestic and intemational levels.3.2 R€gional Lev€l

Currently, the government is still looking into methodsfor the preparation ofregional plan for West Malaysia. Itis very much possible that future regional plan will be pre-pared for four specific regions, namely Klang Valley Con-urbation, George Town Conurbation, Kuantan Conurbationand Johor Bahru Conurbationt"l. With regional planning,the government wish to see more concerted infrastructureand land use development to facilitate economic groMhand improve living quality at regional level.3.3 State LeYel

To date, 10 states in Peninsula Malaysia already havetheir own structure plan (SP) that covers the entire state;cxcept for Perlis, where plan is still under preparationt2el.

Structure plan is a written statement, supported by plans,photos and illustrations to explain the development vision,policies and strategies for a state. Policies in structue planare trickled down from the National Physical Plan, thusensuing continuity within the national planning policyframework. Structure plan is used to improve the over-

all physical and socio-economic conditions of a state, bycreating more balance urban-rural groMh and encouragesustainable development. Policies contain in a structureplan include state physical development strategy, policyfor environment presewation, infrastucture and socialfacilities, land use development and also implementationand monitoring mechanisml'ol.

It is important to highlight that, during plan making, 1o-

cal people and the public are given opportunity to voicetheir views and objections about the plan, through the'publicity'process, which is a public participation ex-ercise. Public's views and objections will be taken intoconsideration when the plan is being finalised by the StateGovernment.

Previously, there are some issues rise related to thepreparation and implementation of structure plan. It wasargued that structure plan has not been an effective tool inguiding planning and development. Proposals in slructureplan are deemed too general and at times not adequatelyjustif. Hence, planning authority and the public did notrefer structure plan enough to benefit fully from it- Suchview towards structure plan has eroded the its function toset states' development direction, as provided in Act 172.3.4 Local Level

Under Act 172, local plan (LP) is prepare al districtlevel, to guide development at city, town, village and ruralarea. Local plan details out broader structure plan poli-cies. Like structure plan, local plan is also a written docu-ment supported by plans, photos and illustrations to showthe proposed developments. Local plan contains specificplanning guidelines such as allowable density, buildingheights and set-backs. Local plan also contains lot basedproposals for housing, industry, commercial, education,healthcare, tourism, heritage, infrastructures, public facili-lies and open space sectors. Like structure planr prepara-tion of local plan also goes thrcugh public pafiicipationprocess.

Under Act 172, development approved by local author-ity must be inlined with local plan and its planning stand-

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ards. However, there are some implementalion issues re-lated to this. One ofthe most significant issues to date isabout development not complying with local plan. It is ar-gued that local plan does not contain well thought off andproperly justified proposals. This weakness has caused

changes to local plan during planning decision process, tokeep up with demand for development on the ground.

Beside local plan, now local authorities are also requiredto prepare special action plan (SAP) for an area. Specialarea plan provides detail measures to plan, develop and

manage pressing issue at a specific site, where local plan'sgeneral proposals and guidelines could not possibly deal

with. Special area plan could be prepared for the preven-

tion or mitigation offlood, preservalion ofhistoric zone orprotection of environmentally sensitive area.

The history ofspecial area plan is relatively young com-pare to structure plan and local plan. First special area

plan was gazetted in 2007 for Bestari Jaya in Selangortt'1.

Since then, a number of such plan are also prepared. Thisinclude Taiping Special Area Plan in Perak and Hang TuahJaya Special Area Plan in Melakal32l. Due to its relativeshort history much ofthe issue related to special area planhas not been studied.

4. PLANNING CONTROL SYSTEM4.1 Planning Permission Process

UnderAct 172, planning control process is basically theprocess to obtain permission for development and enforce-ment related to development without permission. Plan-ning permission, according to Act 172, means 'permissiongranted with or without condition, to carry out develop-ment'. Under section 19 ofthe Act, no person is allowedto start any development without prior obtaining approvalfrom the local authority. All forms ofdevelopment requireplanning permission, except those involve maintenanceworks inside a building, laying down public utilities likeelectricity, excavation of earth for agricultural purpose(i.e. digging well), or erection of temporary structue forcultural or religious activities.

As stipulated in section 21 ofAct 172, to obtain plan-ning permission, a person must submit application to thelocal plaruring authority accompanied by developmentproposal report (DPR). Development proposal report is adocument that contains mainly proposals in the fom ofde-velopment concept and justification, layout design, resultsfrom topographic, vegetation and land use investigations,and also land ownership details. As requiredby Act 172,the proposed layout plans must show measures for protec-tion and improvement ofphysical environment, making upof open spaces and description of eafthworks that need tobe carried out. In the case of development involving spe-

cial architecture or historical importance, the layout plan

must also include information on the use and condition ofbuildings on and surrounding the site, and also measures

for its protection, preservation and enhancement.When local planning authority evaluates planning per-

mission application, it must ascertain that the proposed

development is in conformitJi to current local plan or thoseunder preparation. The development must also complywith any directive given by the State Plaffring Councilfor the said development, for example l0 percent low costhousing for new township development. During the limeof application, if the project area is not covered by a lo-cal plan, then local planning authority needs to notiry theowner of neighbouring lots about the intended develop-ment, and their right to make objections. Objection ifannwill need to be considered thoroughly by local auhtorifybefore making final decision on the application (Fig. 3).

4.2 Advice from National Physical Planning CouncilAfter the amendment to Act 172 in200l, besides local

planning authority and State Government, Federal Gov-ernrnent also play an important role to influence planningdecision. Federal Govemment via the sitting ofNationalPhysical Planning Council (NPPC), is required to giveopinions and advices on three types of development, as

Fig. 3 Planning Permission Process (Section 21 Act 172)

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stipulated in section22(2A) of Act l72Frl. These develop-ment are: l) development of new township with more than10 thousand population or development on an area largerthen 100 hectares or both; 2) development ofmajor nation-al infrastructures and facilities, such as airport, railroad,dam or toxic waste disposal site; 3) development on hilltopor hillside area, which are designated as environmentallysensitive area in a local plan.

Developments other than the above types will not seek

council's advice and will go through normal procedure.This approach creates some form of check and balance inthe development process. Advices lrom lhe council are

biding even though land is under the control of states.There are p vate developers and officials that argued thisprocess, an addition in year 2003, could slow planning de-cision, and subsequently, the whole development process.

While others have the view that any form of monitoringfrom a higher authority can minimise manipulation at low-er level and better protect public interest.

5. APPEAL BOARD SYSTEM5.1 Appeal Board's Function

Besides the opportunity to get involved in plan mak-ing, the public are also given opportunity to be heard inplanning decision making process. This is done via ap-peal board created under the provision ofAct 172. Ap-peal Board is established at state level to give a person theopportunity to be heard and change the decision of localplaruring authority. In reverse, local planning authority isalso given the chance to defends its planning decisions.The fypes of cases that can be heard by an appeal boardinclude those pertaining to planning permission refusal,planning permission conditions, compensation amountmade under Act 172 and tree presevation order. Duringthe sitting, bolh appellant and local planning authority willbe called to give testimonies in front of a panel of fomerjudges. Decision made by appeal board is considered fi-nal, and can only be challenged in civil court by the appel-lant or local planning authority, on legal matters, and noton planning maltem.5,2 Acceptance Towards Appeal Board

Thus far, all states in Malaysia except Perlis, have al-ready set up their own appeal board. Among them, ap-peal boards in Penang, Perak and Selangor are the mostactive. Total cases received in these three states by August3l 2006 is 294 cases, representing 96 percent ofthe totalcases in West Malaysial''r lTable 3;.

The reasons for such figure could be due to the fact thatthese states, which are more urbanised and economicallyand socially more advanced, have relatively more planningpermission applications. People of these states are also

more informed and confident to challenge unsound plan-ning decisions. So far, appeal board has been successfulin providing platform for public to check local authority'splanning decisions and ensure element of transparency inplanning decision process.

Table 3 Cases Recieved by States'App€al Boards(UntilAugust 31 2006)

6. PLANNING CONTROL SYSTEM ANDIMPLEMENTATIOFI ISSUESIn this section, the discussion will focus on nvo groups

of implementation issues on planning control in Malay-sia. These issues are: 1) development not complying withdevelopmet plans (section 18 of Act 172); and 2) devel-opment without planning permission, contrary to planningpermission and enforcement (sections 19,20 and 26) (Ta-

ble 4).

Table 4 Provisions on Planning Control in Part IV ofAct 172

ofhnd and buildings

Prohibition of developm€nt cortrary to phnning perrnission

These provisions were selected as they set down thecontrol spirit in Malaysian planning system. Failure to putinto practice these legal requirements can generate longterm negative impacts to the general public, the overallplanning system and planning profession. For analysisand discussion purposes, the content of individual sectionare explained, and follow by issues observed in relation toits implementation. The possible causes and reasons ofthese issues are examined and their implications described.Finally, proposals are made to suggest impowement forthese situations.

l8

EstlblishTotal(%)

t987 00

2001 2001-2006 27

zoo5 001 002005 0.02AM 0.01996 1996-2005 15.0

201t:t 0

I 06 l IO291 r00.0

20A Duty to consult

Offences relatlng to unauthorized development

modified ploning permission or approvalofbuilding plan

3lA Inconsistency between building bylaws and developinent plan

7. ISSUES OF DEVELOPMENT NOT COMPLYINGWITH DEVELOPMENT PLANS

7.1 Legal ProvisionSection l8 of AcI172 stated that no person shall use or

permit to be tsed any land or building otherwise than inconformity with the local plan. In simple term, this means

development must follow local plan.

7.2 Implementation IssuesDespite legal obligation, in reality, developments on

ground do not always comform to local plans. Under thelaw, any person can submit application for development.In the case when the proposed development is not the same

as in local plan, that application should be rejected by localplanning authority. Hov'ever, there are instances wherelocal planning authorities allowed development contraryto local plans to take place. And local plans are eventuallychanged to suit the new development. Changes to a localplan which is already in use, needs to be re-gazetted forpublic information. The act of re-gazette, is to announcethe change and legitimised the new development whichnow becomes part ofthe local plan. However, to facilitatequicker development, some local planning authorities al-low developments to start even before gazette was done.

There are also instances where the gazette of local plansare delayed. Delays can take up to monlhs, often leavinga time gap between the start of actual developments on theground and the eventual gazette ofthe plans. Under suchsituation, developments ifchallenge, can be considered il-legal as they violate section l8 of Lct 172.7.3 Possible Causes

The causes ofnone compliance to local plan can be dueto a few inter-related factors. It was argued by some plan-ners and urban administrators that planning guidelines andproposals in the local plans are not futuristic and well jus-tified, as they did not anticipate thoroughly the emergingtrends for future demand. The possible explaination forthis argument is that certain local planning authorities andthe planning team that helped prepared local plans, have noclear visions of what they want to achieve for their cities.Because of this, much of the development concepts andguidelines adopted, are merely conventional and stand-ard one, and sometime look similar in other local plans.This has caused cedain developments which have adoptednon-conventional design, or design with special features,to have difflculties adjusting to the requiredrents of localplans, especially on land usage and design standards. Ex-ample ofthese requirements are often related to density orplot ratio ofa development.

The second possible reason for developments not con-forming with local plans is related to local plans' contentthat seemed not current. This issue could be due to the de-

lay in completing local plans. Before 2008, standard prep-aration time for local plan is between 20 to 24 monlhst'ol.After year 2008, preparation time is reduced to 12 to 15

monthstttl. The reason for this change is because there are

instances when local plans take up more than 24 monthsto be completed. When this happen, many data and infor-

mation that are used to justi! proposals in the local plans

become inelevant, as changes already rapidly happenedon ground. The cause ofdelay in completing the plans is

often related to the postponement ofvital meetings meantto approve the local plans. There are officials who arguedsuch postponment is sometime inevitable as officials likethe Mentri Besar or Chief Minister (the political and exec-utive head ofa state, who also chairs State Planning Coun-cil meetings) often have important impromptu matters toattend to. But sometime when postponment happened toooften and causes delay for months, this could be viewed as

lack of commitmenl from the government, which is crucialfor any success in plaming.

Besides that, delay in completing a local plan, to certainextend, is deemed related to the incapability of consultantteam, engaged by the government, to complete the plan intime. These consultants are supposedly specialist in theirown field like land use, housing, infrastructures, utilities,economy, social, environment, transportation, heritage,tourism, geographical information system and manage-ment. Certain consultants are highly skilled, while oth-ers, lack expertise and cutting edge technical-know-how.Because ofthis, certain sectoral consultants find it hard toproduce quality work on time, compare to other sectoralcounterparts. There are also cases when one consultanthandle a few projects at one time and cannot fully con-centrate on the jobs. This can indeed effect the quality oflocal plans. The low job quality ofcertain appointed con-sultants has caused govemment to take more time to checkand validate data and proposals in the local plan. Suchextra time has cont buted to the overall delay in prepara-tion period. Sometime when time is running out, properchecking cannot be done thoroughly, and in the end, thequality oflocal plan is undermined.7.4 Implication

When a local plan is frequently changed to incorporatenew development, this means, the actual purpose of hav-ing local plan to guide future development - allow what issuitable and disallow what is not - can bejeopardised. Lo-cal plan in such context, can be viewed as not being able toperforme its original fuction as an effective planning guidefor the local planning authority and development guide forthe public. Not to mention .also the large sum of money(average cost for one local plan is Ringgit Malaysia (RM)1.3 million or about Japanese Yen (JPY) 2 million), effortand time used for its preparation.7.5 Ways of Improvement

To improve the content of local plan, local authoritymust with the help ofconsultant and project team, exploresthe potentials and weaknesses ofthe city and decide on itsvision and improvement. This vision and improvementmust then be translated into the plan, in the form of clearand well justified guidelines for effective implementation.Planning direction must also meet local needs and aspira-tions. Proposals not meeting local expectations may notbe implemented as they deemed 'foreign'. Study oflocalplans must also involves local people and local authority

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as much as possible to produce a plan that represents everyparty's aspiration. Dialogues with all stakeholders shouldbe carried out continuously through out the process via in-formal focal group discussion (FGD). Feedbacks to theplan should not be confined to formal publicity sessions

only. Tedious it may seem, continuous informal meetingcan sometime provide new informations and ideas for be!ter planning and innovation.

To avoid delay in the completion of local plans, thenumber of decision making meetings should be stream-lined to focus on a few pivotal one. Other than key meet-ings, specially formed sub-committees could also be givenpower to make certain key decisions lor the plans. Thiswill cut down on waiting time and minimise delay. Studyteam should also familiarise themselves quickly with thestudy area and local people to proceed smoothly. If pos-

sible, planners who are from the study area are given prior-ity to involve or lead the study as they understand the place

better and can adapt quickly.To avoid low quality local plans, the appointed consult-

ants must self-improve and innovate to deliver good work.They should also restrain from taking in too many projects

iftheir professional capacity does not allow. Consultantsshould give more concentration and better commitment tothe projects they are involved with, and not to pu1 theirprofessional reputation at risk (Fig.4).

8, ISSUES OF DEVELOPMENT WITHOUT ORCONTRARY TO PLANNING PERMISSION ANDITS ENFORCEMENT

8.1 Legal ProvisionsSection 19 of AcI 172 stated that no person can com-

mence, undertake, or carry out any development unless

planning permission for that development has been ob-tained. Section 20 of the Act stated that no person shallcommence, undertake, or carry out any development un-less he conforms to the planning permission or the condi-tions of the permission ganted to him. While section 26ofAct 172 stated that any person who development in con-tradiction to local plans, carries out or permits to be carried

Act 17, Inptem$rlitotSectiotr 18 l{in.(

Cluscd by PGsibtcReasons

out any development in contravention ofsection l9 or 20,

is committing an offence- This offence, ifconvicted, car-

ries a fine not exceeding RM 500,000 (JPY 16,300,000)

or imprisonment not exceeding two years or both. In the

case of continuing offence, a further fine of RM5,000(JPY 163,000) each day is impose upon the offender. Theabove provisions showed that to develop without planningpermission or against planning permission conditions are

serious offences, thal can lead to heavy penalties to the

wrongdoer.8.2 Implementation Issues

Even thoughAct 172 has clearly stated the requirements

for planning permission and the need to follow planningconditions imposed on any development, there are in-stances when the law is breeched. This means there are

developments that started without planning permission or

not fulfilling the prerequisite of planning conditions. For

both situations, there are also instances when enforcement

is not being carried out properly. Non-compliance to plan-

ning control provisions could create far reaching negative

impacts in many aspects of planning, including living en-

vironment, planning system, urban govemance and plan-

ning profession. When further analysed, the issues ofnotcomplying to section 19,20 and 26 of Act 172 could be

related to two possible causes: 1) public's ignorance about

the requirement ofAct 172 and their reluctance to comply;2) planning authorities' ignorance about the detail provi-sions ofAct 172 and their reluctance to comply or imple-ment the Act.8.3 Possible Causes1) Public's Ignorance About Act 172 and Their Reluc-

tance to Comply With the ActThe Malaysian general public might not be informed

about the existence and content ofAct 172, which requires

developments to first obtain planning approval from thelocal planning authority. People who knows this could be

limited to those involve in the development and construc-tion fields. Because ofthis, general public is unaware ofthe need to apply for planning permission. Because ofthis also, public does not aware that development without

W.ys oflmprovemeDtInDric.tions Lo.dl plan's .ontent

t;.'*; ]I with l.m plm

C*-;; '--l

| ',--

Fig. 4 Irn plementation Issues on Planning Permission and Development Plan ofSection l8 ofAct 172

54-

planning permission or contrary to planning permission

are offences subject to fine and imprisonment.On the other hand, there are people who knows about

the need to acquire planning approval before development

can start. However, they do not comply to this require-

ment. The possible reason could be that these people are

discouraged by the delay in getting planning permission

approval. On paper, planning permission application takes

about four months to completet'ul. But there are instances

when longer time were taken. Realising the seriousness ofthis problem and the negative implications to the construc-

tion industry, Malaysian Govemmenthad on l3April2007,launched the 'One Stop Centre' (OSC) initiative to tackle

this issuet"l. OSC is an entity set up in local authority to

coordinate all planning applications it received. OSC is

responsible to ensure all planning permission applications

are processed by relevant technical departments in the lo-cal aulhority within the set timeframe. OSC's aim is toreduce waiting time from the previous 124 days (includingtime to send notice to neighbouring lots where there is no

local plan for the development area) to 92 daysl"l.Besides delay, certain people do not apply to planning

permission because they do not want to be tied down byplanning permission's conditions given by local planningauthority. Example of such conditions include proposed

development must comply to local plan; or for develop-

ment larger than five acres, 10 percent ofthe land must

be reserved for green and open spacet"l. To some people

especially private developers, such conditions are consid-

ered rigid and non-profitable. Hence, they are reluctant

to comply. There are also pdvate developers who are not

afraid to go against planning conditions because they be-

lieve planning and enforcement officers, especially those

in smaller local authorities, due to their limited resources

and unfamiliarity with Act 172, would not be able to carryout monitoring and enforcement effectively.2) Planning Authorities' Ignorance About Act 172 and

Their Reluctance to Comply With the ActThe other main cause why sections 19, 20 and 26 ofAct

l'/2 are not lollowed properly by planning and enforce-ment officers, is due to their ignorance about the provi-sions. Cunently, the Federal Department of Town and

Country Plaming organises hands-on lectures on the im-plementation ofAct 172 a few times a year. The aim is toequip planners and enfotcement ofncers from the state and

local planning authorities, with knowledge about Act 172

and its subsidiary laws, such as Planning Control (Gener-

al) Rules, which is the detail regulations that govem plan-

ning permission application process. However, the effec-

tiveness of such training programmes were not evaluatedperiodically to know their effectiveness in imparling new

knowledge !o the participants and raised work perfotm-

ance. If this training programme did not achieve the ob-jective to make enforcement officers more competent, then

weak enforcement ofAct 172 will continue to happen.

Besides that, local planning authorities are found to be

reluctant to act on developments without or contmry to

planning permission. This could be due to a few reasons.

One of the reasons is the issue of shortage of resources

faced by smaller local planning authorities in Malaysia.

Shortages, especially in human resource, are a hindrance

to effective planning and enforcement. The concem forinsufficient planners to effectively overseer planning ap-

plications and not enough man power to check on erro-neous development, are long mentioned issue. Most ofthe time, financial constraint is cited as the main cause ofsuch problem. Even though local authorities work hard totackle this issue, including maximum utilisation of exist-ing workforce, but the issue ofweak enforcement will no1

solve ifnew staffs are not fill in or other better solution is

not put forward.Planning authorities' reluctance to take on development

without or contrary to planning permission is also partlydue to the long procedure involves in enforecment action.

As provided in Acl 172, to take action against develop-ment without or contrary to planning permission is a com-plicating process. It involves prosecution in court and can

take months or even years to complete. This has caused

certain local authorities prefer taking actions under otherlaw such as Road, Drainage and Building Act 1984 (Act133), for offences involve building withoul approval. Thispreference is very much due to the fact that punishmentunderAct 133 for such offence is compound, which can be

settled by only paying fine and not prosecution in courtttel.

Local authorities' preference forthis simpler process is un-derstandable, as they are faced with staffing, legal exper-

tise and logistics limitation. Taking action under a more

simple law is also deemed better than not taking action at

all.Nonetheless, preference for other laws should not dis-

credit the usefulness of AcI 172- ln fact, Act 172 whichhas one of the heaviest punishment for development re-

lated offences, should be utilised fully to make planningcontrol effeclive and development sustainable. One such

case that had catered on the strict provisions ofAct 172,

is the landmark case of Bukit Cahaya Seri Alam, in Shah

Alam, Selangor. In this 2005 case, part of the Bukit Ca-

haya Seri Alam National Agriculture Park was floodedby illegal construction at an adjacent development thatdid not apply for planning permission. Subsequently,three developers were fined a total of RM840,000 (JPY27,000,000)ta0r for causing damage to the park and the sur-

rounding neighbourhoods. This has since served a lesson

to pdvate developers and govemment officials, to heed thelaws, in particular Acl772,morc seriously.8.4 Implication

Allowing development without planning permission orcontmry to planning approval and also ineffective enforce-

ment, could have a few crucial implications to the fieldof planning. First, public could lose faith in the wholeplanning control system as it deem unreliable and couldnot raise living quality and standard. Second, local plan-

ning authority could lose its credential as the controllerand manager of development, because the role to protects

-55-

living environment and provides comfortable life is notperfom fittingly. Third, instead of being applied as theprime legal instrument to administer planning control mat-ters, Act 172 and its by-laws become secondary to otherlaws like Act 133.

Eventually, Act 172 could become 'white elephant' law- a law that is not use, thus gives no authority. This shouldnot have happened, as the initial aim to create Act 172 32years back, was to facilitate better planning and not dam-age. Finally, a less valued planning system by the publiccould means planning profession will not be looked upon.In the long run, planners might lose its specialised stand-ing among other professionals like architect or engineer.This is something planners themselves do not want to see,because planning is historically and professionally, a nobleone.

8,5 Ways of ImprovementTo takcle issues of development without and contrary

to planning permission and also ineffective enforcement, anumber ofmeasures can be taken to improve the situation.Basically, these improvements can be made in three as-pects: I ) knowledge and expertiese in Act 172;2) planningpermission system; and 3) planning authority resourcemanagement,l) Knowledge and Expertiese in Act 172

Public must be informed more widely about planningcontrol syslem under Act 172, in particular the need to getplanning approval before a development starts. They mustalso be informed about the consequences ofgoing againstthe law. This responsibility to educate the public shouldbe shouldered by planners and relevant officials from thefederal, state or loca1 planning authorities. Informationcould be trickled down via specific Focus Group Discus-sions (FGD), public forums or any available opportunitiesto dialogue with the public.

Trainings conducted for planners and enforcement offic-ers onAct 172 should also be assessed periodically to un-derstand their effectiveness. Only with systematic assess-ment can federal govemment understands whether thesetrainings had been successful in imparting knowledge andskills to officers, to enable them to carry out enforcementconfi dently and effectively.2) Planning Permission System

Malaysian Govemment has introduced OSC system in2007 to improve planning delivery at local authority lev-el. Due to its infancy, the effectiveness of OSC is stillnot being examined fully. Evaluation on OSC should becarried out to know ifthis new system works better. Theweakness of OSC should be improved and its strength beemphasised. If such system works better, then much ofthe delay faced by planning permission applicants can besolved.

On the issue that public, especially private developerare reluctant to follow plaming requirements such as localplan and conditions like open space requirement, federal,state and local planning authorities must take up the re-sponsibility to explain the necessity for such requirements.

These requirements are meant to ensure systematic plan-ning to create better living for all. Development applica-tion that does not meet the relevant plaming conditionsshould not be entertained. In the case when change is in-evitable for local plan, change must be done at the bestinterest ofpublic and not individual. To ascertain that lo-cal plan is used as an effective planning tool, federal, stateand local govemments should ensure that local plans areprepared efficiently and thoughtfully, with simple to un-derstand, thorough and welljustified proposals. This willreduce the tendencies for local plans to become displayitems only at local authority offices. And only then canpublic have more faith in the planning conhol system.

On a long term basis, local authorities, especially thosemore established one with better resources and expertise,can for a start, look beyond small punishment for minoroffences, like illegal extension ofhouses or erecting illegalworkshops. They should look into taking on illegal devel-opments thal have larger and deeper implications to theenvironment and people. To facilitate more eifective en-forcement, simple, detail but clear guidelines on enforce-ment procedures and steps should be formulated by federaland states planning authorities. These guides will help 1o-

cal authorities implement enforcement better-3) Local Authority Resource Management

The issue of insufficient planners to process planningapplications effectively and insufficient man-power to en-force against developments without or contrary to plan-ning permission, should be tackled seriously if planningsystem wants to be effective. For a start, local govemmentshould find means and ways to increase financial resourcesso that more staffs can be employed to conduct enforce-ment. Even though the number of newly hired could besmall in the beginning, but the impact can be far reaching,as more enforcements could be done now Existing staffmembers should also be motivated to raise job efficiencyand performance. This could be done either by verbal mo-tivation coming from top management or special incen-tives given to recognisejob excellence. All in all, plannersand enforcement personnels must be instilled the value ofprofesionalism. As their action will effect planning per-formance and reflect quality ofurban govemance (Fig. 5).

9. CONCLUSIONThis paper has dicussed two key non-compliance is-

sues faced by Act 172 in Malaysia. These key issues arefirst, planning not conforming to local plan and second,development without or contratry to planning permissionand constraint faced by planning authority to handle suchissues. Much of the causes for first issues are telated tothe content, preparation method and management of localplan, which is found to be losing its usefulness as an ef-fective planning tool. While causes for the second issuesare largely related to the public and local govemment'signorance about planning control system and also theirreluctance to enforce such system, according to the provi-sions ofAct 172.

-56-

To make progress from such unfavouring situations,a number of measures have been suggested. These sug-gestions mainly centred around the need to better educatethe public and planning authority, on the significance ofplanning control and the role it plays to ensure proper de-velopment; the necessity to follow planing requirementssuch as the local plan; more clear enforcement procedure;improvement on local authority's finance and human re-sources situation to raise planning delivery and to improvethe content, preparation method and management of localplans.

It is recognised that the above suggestions will not solveall issues related to planning control and development inthe country. However, such issues if left uncheck, couldhamper the govemment's effort to achieve developed na-tior status by year 2020. With 12 years left, any smalland concerted effort to improve planning system that fa-cilitates development, should be given a chance and en-coumgement,

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(*€:+Ft20+6858)