Q.
i. A planning application by Encik Yusof to develop his land has been rejected on the grounds that the land is zoned for public purpose. His appeal has also been rejected.
ii. Encik Chong has received a stop work order from the local planning authority for his development which has been granted a planning permission. A new condition has been imposed with requires him to reduce the built-up area from 500,000 square feet to 400,000 square feet due to objections by neighbouring lot owners. Encik Chong disagrees with the new terms as it will affect the viability of the project. His appeal on this matter has also been rejected.
Discuss the actions that can be taken by Encik Yusof and Encik Chong with reference to the Town and Country Planning Act 1976 (Act 172).
(25 marks, 2019 Q4)
A.
i) En Yusof
This question is to be answered with the notion that En Yusof had appealed and was turned down. Which means the land is being zoned and will be used for public purpose - there is no reverse.
This mean it is "land acquisition" by the authority, hence it cannot be otherwise, changed. Plans for consideration of re-submitting the plan or paying of development charge to try get the plan being approved are NO MORE available.
Similar question was asked in
En Yusof cannot develop his land because it is under zoning for public purpose - under land acquisition. After having been rejected even on appeal means he can only accept the fact that it is under land acquisition. On this part, he can only do the below action as provided under Town and Country Planning Act, 1976, which is:
serve on the local planning authority a purchase notice in the prescribed form, requiring his interest in the land to be purchased in accordance with this section (section 37(1)(b).
The law which governs this area is Section 37 of the Town and Country Planning Act 1976.
Notice requiring purchase of land in certain cases
37. (1) Without prejudice to the operation of any written law for the time being in force relating to the acquisition of land, a registered proprietor of land—
(a) for the development of whose land planning permission has been refused under subsection 22(3) on the grounds that the land is indicated in the development plan, whether expressly or by implication, as land intended for a public purpose and who claims that, by reason of the refusal, the land is incapable of reasonable beneficial use; or
(b) who claims that, by reason of compliance with a requisition notice in respect of his land served on him under Section 30, the land is incapable of reasonable beneficial use, may, in the prescribed manner, serve on the local planning authority a purchase notice in the prescribed form, requiring his interest in the land to be purchased in accordance with this section.
(2) There shall be served with the purchase notice a statement of the facts and reasons to justify the claims in the notice, together with copies of any available documents, including affidavits, that may furnish proof of the facts and reasons.
(3) The local planning authority shall investigate the claim made in every purchase notice served under subsection (1) and, if it is satisfied that the notice is in the prescribed form and has been prepared and served in the prescribed manner, shall submit the notice to the State Authority together with the statement and any other documents served with the notice and—
(a) in the case of a purchase notice of a person claiming under paragraph (1)(a), a detailed report concerning the refusal of planning permission giving rise to the claim, a statement of the specific purpose for which the land is intended, and a statement of the opinion of the local planning authority as to whether the land is capable of reasonable beneficial use; and
(5) The State Authority, after considering the purchase notice and all other matters submitted by the local planning authority under subsection (3), shall—
(a) if the State Authority is satisfied that the land to which the purchase notice relates is capable of reasonable beneficial use, reject the purchase notice; or
(b) if the State Authority is not satisfied that the land to which the purchase notice relates is capable of reasonable beneficial use or is satisfied that the land is not capable of such use, direct the local planning authority to initiate steps towards the acquisition of the land in accordance with the provisions of the Land Acquisition Act 1960 [Act 486].
(6) For the purposes of the Land Acquisition Act 1960—
(a) any land intended to be acquired pursuant to this section shall be deemed to be needed by the local planning authority;
(b) the local planning authority shall be deemed to be a corporation undertaking a work that is of public utility; and
(c) the land shall be deemed to be needed for the purpose referred to in paragraph 3(1)(b) of the Act.
Brief Summary
For land owner who intends to develop the land, approval of a Permit must be obtained from the State Planning Unit under the State Authority. If it is being refused due to reasons of town planning and for public use, e.g. building of school, hospital, road and bridges, the refusal to grant a permit results in the loss of beneficial use of the land to the owner. The owner - in this case En Yusof - cannot develop the land anymore.
In such case, En Yusof can have an avenue to notify the Local Authority to purchase his affected land. Such notice is studied by the State Authority and if acquisition of the affected land is the best option, the procedures and laws of Land Acquisition Act, 1960 kicks in.
The law that governs the matter is Section 37 of the Town and Country Planning Act, 1976. Postings on Town and Country Planning Act is gathered in this link in Part II.
Ref:
[x] The UK Planning Inspectorate, under "Purchase Notices Served under the Town and Country
Planning Act 1990", available at
http://www.planningportal.gov.uk/uploads/pins/purchase_notice_guidance.pdf
Sections 22 and 37 of Town and Country Planning Act, 1976 available at
http://www.agc.gov.my search under Laws of Malaysia.
b) En Chong.
Again, En Chong's appeal has been rejected. Which means he has to comply with the new plan - which mean: to reduce the built-up area from 500,000 square feet to 400,000 square feet due to objections by neighbouring lot owners.
PLANNING CONTROL
Use of land and buildings
18. (1) No person shall use or permit to be used any land or building otherwise than in conformity with the local plan.
Alteration, revocation and replacement of local plans
16. (1) The local planning authority may at any time make proposals for the alteration, revocation, or replacement of a local plan.
(2) Without prejudice to subsection (1), the local planning authority shall, if the Committee gives it a direction in that behalf in respect of a local plan, as soon as practicable prepare proposals of a kind specified in the direction, being proposals for the alteration, revocation, or replacement of the plan.
Hence, the local authority or State Authority has decided to change the approved plan to this new requirement, and En Chong cannot challenge that and,
Prohibition of development without planning permission
19. (1) No person, other than a local authority, shall commence, undertake, or carry out any development unless planning permission in respect of the development has been granted to him under section 22 or extended under subsection 24(3).
Section 19 says En Chong cannot proceed to do the development without following the new planning permission (of the 400,000 sqf).
The Appeal Board
Hence, from the State Planning Committee to the Local Planning Authority, En Chong has been instructed to stop work with the "Stop Work Order" unless comply with the new requirement of reducing the footage to 400,000 sqf. This means En Chong has no avenue to appeal (as he appealed before) anymore than going to THE APPEAL BOARD.
Appeal Board is like Strata Management Tribunal (when dispute cannot be settled within the strata community - MC and Commissioner of Building), or the Home Buyer's Tribunal (under the Housing Development Act). This is however, different from the two bodies above because The Appeal Board is under the State (not under Federal Government).
Which means, when The Appeal Board decides, it is still within the State (as State Planning Committee is the highest planning authority of the State), thus the effectiveness and power to over-write the State Planning Authority is questionable. In law affecting the land, State is the highest authority.
Nevertheless, this is provided in Town and Country Planning Act, 1976 as below:
Appeal against decision of local planning authority
23. (1) An appeal against the decision of the local planning authority made under subsection 22(3) may be made to the Appeal Board within one month from the date of the communication of such decision to him, by—
(a) an applicant for planning permission aggrieved by the decision of the local planning authority to refuse planning permission or by any condition imposed by the local planning authority in granting planning permission; and
(b) a person who has lodged an objection pursuant to subsection 21(6) and is aggrieved by the decision of the local planning authority in relation to his objection.
(2) In considering an appeal, the Appeal Board shall hear the appellant and the local planning authority.
Therefore, after having heard En Chong's appeal in The Appeal Board, the Appeal Board will make order to the Local Planning Authority as below.
(3) After hearing the appeal, the Appeal Board may make an order—
(a) confirming the decision of the local planning authority and dismissing the appeal;
(b) allowing the appeal by directing the local planning authority to grant planning permission absolutely or subject to such conditions as the Appeal Board thinks fit;
(c) allowing the appeal by setting aside any planning permission granted; or
(d) allowing the appeal by directing the local planning authority to remove or modify any condition subject to which planning permission has been granted or to replace the condition with such other condition as the Appeal Board thinks fit.
Further reading can be obtained on this subject of Planning Law - which is rather complex.
- Dr Lee Lik Meng on "Who is the ultimate planning authority in Malaysia?"
- Salleh Buang's review article in New Straits Times "Review Planning Appeal Mechanism"
Ref:
Own account.