Modernising our planning law By Salleh Buang

(1)

Disclaimer: Perpustakaan Tun Abdul Razak,UiTM

This material may be protected under Malaysia Copyright Act which governs the making of photocopies, reproductions or copyrighted materials. You may use the digitized materials for study or research.

Modernising our planning law

By Salleh Buang - September 6, 2018 @ 9:54am

A view of Kuala Lumpur city centre. PIC BY HAFIZ SOHAIMI

Peninsular Malaysia’s planning law is at least a century old. The question is not whether it should be reformed, but “how” it should be reformed.

According to planning experts, our earliest local planning authority was the Committee of Assessors in George Town Penang in 1801, empowered to plan the development of the town area and the construction of its streets and drainage. In 1913 a Town Planning Committee for Kuala Lumpur was established.

Town planning laws were then passed to enable local authorities to maintain public health. These were the Municipal Ordinance (CAP 133) of 1913 and the Town Improvement Enactment of 1917.

Headline Modernising Our Planning Law Language English

Media Title New Straits Times Section/Page No

Date 06/09/2018 Journalist Salleh Buang

Source https://www.nst.com.my/opinion/columnists/2018 /09/408807/modernising-our-planning-law

Remarks Town & Regional Planning

(2)

In 1921, Charles Read was appointed as the first town planner for the Federated Malay States. A year later he submitted his recommendations for a town planning legislation in the country. This resulted in the passage of the Town Planning Enactment of 1923, later amended in 1927. The Town Planning Committee was abolished and planning powers were handed over to the Sanitary Boards.

In 1930, the Sanitary Boards Enactment (Cap 137) was passed to consolidate all the existing legislation. In 1937, Cap 137 was renamed The Town Boards Enactment to reflect the local authorities’ expanding functions and duties, and it continued in force until it was replaced by the Town and Country Planning Act 1976 (Act 172).

The Town Planning Department, which predated Merdeka, was renamed the Town and Village Planning Department (Jabatan Perancangan Bandar dan Desa, JPBD) in 1975, a year before Act 172 was passed.

In 1995, the Town Planners Act (Act 538) was enacted to regulate the planning profession. In 2001, JPBD was restructured into several divisions. Finally, in January 2017, JPBD changed its name to PLAN Malaysia. From its original humble beginnings as a Sanitary Board, town planning has grown in importance in the national landscape.

Act 172 was passed under Article 74(1) and Article 76(4) of the Federal Constitution.

Under Schedule 9 of the Federal Constitution, “town and country planning, except in the federal capital” is under the Concurrent List. Essentially what this means is that Parliament has enacted Act 172 because (i) it has the legislative power to do so, and (ii) it wants to ensure the uniformity of planning law in Peninsular Malaysia. It is for the eleven states to decide when Act 172 (wholly or partly) is enforced in their respective territories.

Since Act 172 came into force, it had been amended four times — in 1993, 1995, 2001 and 2017. According to my colleagues in the planning profession, new amendments are being drafted but they are still a long way from being tabled in Parliament. To figure out how our future planning laws should be, we need to see the developments in other jurisdictions.

In 2005, the Scottish government published a White Paper “Modernising the Planning System” seeking comments on proposed changes to its planning appeal system. The objective of the reform exercise was to improve the process for challenging planning decisions.

In 2009 in Australia, Victoria’s Department of Planning and Community Development (DPCD) issued a 76-page document calling for submissions and recommendations for modernising its Planning and Environment Act 1987. The department’s objective was to enable the country’s planning system to increase efficiency, certainty and transparency, to improve the speed and quality of decision-making, and to facilitate the transition to electronic planning systems.

In November 2017, West Australia commissioned an independent review of its planning system to identify ways to make it more efficient and understandable to everyone. A Green Paper, containing proposals in five key reform areas, was released for public comment in May 2018.

(3)

Explaining this latest exercise, Planning Minister Rita Saffioti said that West Australia’s current planning system had become complex and difficult to

understand. The state needs a contemporary planning system that “not only attracts investment in the smart growth of our towns and cities, but also enhances our built and natural environments”, she added.

In Wales, the United Kingdom Law Commission issued a consultation paper

“Planning Law in Wales” in November 2017 outlining its proposals to draw up a new Planning Code to make “the law clearer, simpler and more effective for everybody”. It said that complex and overlapping planning laws in Wales (contained in over 30 Acts of Parliament) had slowed down the development process, confused applicants for planning permission and generated unnecessary bureaucracy and cost.

To conclude, law reform can be piecemeal (as had been done to Act 172 in the past), alternatively a major revision (as had been done to the National Land Code 1965 recently), or more drastically a total repeal and its replacement with a brand new law (as had been done to the old Companies Act 1965).

Looking at the available options, the best approach should be drafting a new

planning code, in the same manner now being done in Wales. Unlike an ordinary Act of Parliament, a code can restate existing law in a modern, consistent and orderly manner, it can modernise the language and remove ambiguities, it can streamline and rationalise processes and procedures and it can include rules and

interpretations developed from case law. Can we hope for Peninsular Malaysia to take that route?

The writer formerly served the Attorney-General’s Chambers before he left for private practice, the corporate sector and academia

(4)