Role of Federal Planning Authority in the Development Control System in Malaysia. PDF

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1.0 Introduction To Federal Planning Authority Under the Federal Constitution, Town and Country Planning is a shared responsibility between the state government and the federal government. It is implemented through three levels, namely level of Federal, State and Local Government. Town and Country P...

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1.0 Introduction To Federal Planning Authority

Under the Federal Constitution, Town and Country Planning is a shared responsibility between the state government and the federal government. It is implemented through three levels, namely level of Federal, State and Local Government. Town and Country Planning process also has gone through a number of organizations at Federal, State and Local Government levels in order to generate effective planning in Malaysia. Planning system and implementation at the Federal level involves the aspects of policy formulation, planning, implementation, coordination and evaluation.

Generally, Federal Planning Authority plays the roles as below: i.

Formulation of policy as it states the policies, aims and objectives of the government to achieve balanced development in order to create unity society and fair.

ii.

Forming a strategic planning and development at national, regional, urban and rural level.

iii.

Implementation of planning, which it ensure that implementation should meet the designed development plans to support and translate national development policies.

iv.

Coordinating the inter-agency of the implementation to avoid duplication which would have implications for cost, time and energy.

v.

Conducting the assessments to identify the impact of a project for the purposes of providing better planning in the future.

Therefore, based on the major roles played by the Federal Planning Authority (FPA), it is clearly shows that FPA involves in every stages of planning process from the policies formulation as the directions for planning in Malaysia to the last stage of assessing the implementation of physical planning on the ground. This indicates that FPA has the supreme authority in planning matters.

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2.0 Roles of Federal Planning Authority in the Development Control System in Malaysia

Development control is a process of checking a planning application to enable the development can be carried out. It is one of the methods of giving a license to carry out any development activities or make changes to the land and buildings. Landowners or developers who wish to develop are typically required to apply to a local authority (depending on the proposal) for permission prior in order to initiating any development work. During processing a planning application, consideration and evaluation will be based on the legislation, policy development state authorities, objections from the public as well as policy and implementation of local planning authorities. Development control system in urban planning is intended to establish a satisfactory physical environmental conditions for human life well-being. In carrying out development control, the provisions of the National Land Code Act, 1965 (Act 56) and Town and Country Planning Act 1976 (Act 172) is the basis of governance, control and reference for the development of land that is being practiced in this country. In addition, the Act of Roads, Drainage and Building In 1974, the Environmental Quality Act 1974 and other relevant acts are also a reference to land development practices by the authorities concerned. Town and Country Planning Act 1976 (Act 172) clarify that a person is prohibited from carrying out activities or development activities without permission from the local planning authority unless the existing activities have existed before this Act came into force. Fundamentally, development control in Peninsular Malaysia is carrying out through two levels which are State level and Local level. At State level in Peninsular Malaysia, the State Government is fully responsible for all matters related to land use, including changing conditions, subdivision, land consolidation and other matters related to land in their respective states. At Local level, local authorities are responsible for controlling development in the area from technical aspects of designing the layout, building design, accessibility system and availability of public facilities. However, Federal Planning Authority also at the same time involves in playing its role in the development control system in Malaysia. There two different ways on how it plays its roles in the development control system. They are intervention of Federal Planning Authority in accordance with law and intervention of Federal not in accordance to law. Thus, the intervention of Federal in the development control has affected the local authority in carrying out its major duties towards the planning control in local level. 2

2.1 Intervention of Federal Planning Authority In Accordance With Law

According to the Town and Country Planning Act 1976 (Act 172), the act itself is defined as: “An Act for the proper control and regulation of town and country planning in Peninsular Malaysia and for purposes connected therewith or ancillary thereto.”

From the statement provided in the Act 172, it has clarify that the act is a reference tool to guide town planners or any other profession that involved in physical developments especially related to town and country planning in Peninsular Malaysia. It contained the regulations and information on the administration system, development plans, and the development control system of the town and country planning that should be practices in Peninsular Malaysia.

The Federal Territory (Planning) Act 1982 (Act 267) is defined in the act itself as: “An Act to make provisions for the control and regulating of proper planning in the Federal Territory, for the levying of development charges, and for purposes connected therewith or ancillary thereto.”

Briefly, in both acts, the administrative of law mainly is to control the current development and to assist in plan for the future by serving as reference and regulations in development planning and control. Therefore, the strength of the planning system is relying on the organization that leads by the director of the Department of Town and Country Planning and the local authority. Under Act 172, the highest position in the town planning administrative system is the National Physical Planning Council (MPFN) and followed by the Department of Town and Country Planning (JPBD), State Planning Authority (PBN) and the Local Planning Authority (PBPT). Whereas in Act (Planning) Federal Territory in 1982 (Act 267), there is no allocation of MPFN in the planning system. The administration in Kuala Lumpur only involves in the federal and local level. However in this context, the usage of the word “National” in National Physical Planning Council is not relevant as the content of this act can only be applied to states in Peninsular Malaysia and the word “national” supposedly define Malaysia as whole. Even though the definitions have stated it clear on the enforcement, but there is no clear statement in the Act 172 that it

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is not applicable to Kuala Lumpur which geographically located within Peninsular Malaysia too. This evidently implicates confusion to those that refer this act in perform development planning and control. i. National Physical Planning Council (NPPC) The intervention of Federal Planning Authority in accordance with law is basically based on Town and Country Planning Act 1976 (Act 172). In 2001, the Town and Country Planning Act 1976 (Act 172) was amended by the Act A1129 to insert section 2A in establishing the National Physical Planning Council (NPPC). This council was established as a coordinating body for physical planning at the Federal level. It is the supreme council of the national physical planning. According to Town and Country Planning Act 1976 (Act 172) section 2A(1), NPPC consists of: a) a Chairman, being the Prime Minister; b) a Deputy Chairman, being the Deputy Prime Minister; c) the Minister; d) the Minister responsible for housing and local government, if he is not also the Minister responsible for town and country planning; e) the Minister of Finance; f)

the Minister responsible for land;

g) the Menteri Besar or Chief Minister of every State; h) the Minister responsible for the Federal Territory; and i)

not more than seven other members to be appointed by the Chairman.

Besides that, Town and Country Planning Act 1976 (Act 172) has allocated in subsection 2B(2) that the Director General of Town and Country Planning shall be the Secretary of the Council.

It is obviously shows that the organization consisting of highly political and influential group with each of one holds different portfolios and education background. The intervention of these groups could affect the planning control, as even though they hold high rank in administration, how much planning knowledge they owned and how far are their concern in physical planning in Malaysia? This simply gives no assurance that the new members of National Physical Planning Council have the same concern on the physical development and knowledge in planning. They might misuse of their power in managing the development control such as engaging in corruption for personal interests.

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The act 172 has assigned under section 2A (2) the three functions of National Physical Planning Council. The first function is to promote in the country and improve the physical environment towards sustainable development through making national policy town and country planning framework inside the effective and efficient instrument. Apart from that, the National Physical Planning Council functioned to advise the Federal Government or the Government of any State, on matters relating to the town and country planning and lastly to perform any other functions conferred upon the Council under this Act. Furthermore, NPCC is given the role in advising on the development control as well. The Council can give directions to the Director General of Town and Country Planning from time to time with the provisions of this Act and the Director General of Town and Country Planning have to perform what has been directed. The Council also will held a meeting once in four months or anytime when it is convened by the Chairman.

It can be seen that Federal Planning Authority has its own part in development control system as NPPC can give instructions to the Director General of Town and Country Planning and the Director General shall enforce the directive. Moreover, NPPC also have a role to advise the State Government on town and country planning matters but its advices do not binding on any law.

This surely indicates that the involvement of NPPC in the development control has influenced the lower authority when its recommendations regarding planning should be considered as well. On the other hand, the members of the Council only gathered a few times in a year. This is irrelevant as the developments in Malaysia currently has undergone a very rapid growth better than back days which means there are lots of development control need to be handled and coordinated. If the Council tend to gather and discuss only for a few times, these could adversely affect the planning permissions and could possibly slow down the rate of development in Malaysia. Therefore, there is a need for the Council to held a meeting as frequent as possible in order to monitoring the projects that have been assigned from time to time so that the planning for the development become effective as envisioned.

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ii. Department of Town and Country Planning Peninsular Malaysia (DTCP) Department of Town and Country Planning Peninsular Malaysia (DTCP) was established under the Concurrent List in the Federal Constitution and was placed under the jurisdiction of the Ministry of Housing and Local Government. The main function played by DTCP is to introduce and improve the quality of urban planning in the country through the formulation of the Town and Country Planning Act 1976. With this act, for the first time the states in Peninsular Malaysia have a uniform planning legislation. Thus, in controlling the development in Malaysia, DTCP has its own goal which is to ensure the perfect development of land use planning in urban and rural areas by achieving these objectives: i.

plans to develop and strengthen the system of physical, social, economic, environmental and landscape in urban and rural areas to improve the living standards in line with national goals

ii.

regulating, controlling and coordinating the development, utilization and conservation of land through effective implementation of the Town and Country Planning Act and related Acts

iii.

formulate and implement policies, plans and guidelines for planning and ensuring the effective use by all agencies in the planning stage

iv.

ensure urban planning service and quality information system for long-term planning

DTCP Peninsular Malaysia is headed by a Director General and two Deputy Directors. Director General of DTCP was authorized under the Town and Country Planning Act 1976 (Act 172) with the functions are to conduct, promote and co-ordinate town and country planning research, to publish planning and its methodology reports, bulletins, statistics, monographs and other publications, to provide town and country planning information and education to the public, to report to and advise the Council upon matters concerning the use of town and country planning in the conservation, use and development of lands in the country and upon any amendments he thinks desirable to any law affecting town and country planning and upon any matters referred to him by the Council, to establish and maintain liaison and co-operation with each of the State Authorities with respect to town and country planning.

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The Director General of Town and Country Planning is the Secretary of the Council as well and this can simply be concluded that the Director General of Town and Country Planning is the main player that influence the decision making and the planning components system. However, in the current situation the hierarchy of the Town and Country Planning Department are not tallied to what is stated in the act. There are more J41 grade officers and less J17 grade technical assistant.

iii. State Planning Committee (SPC)

Another intervention of Federal Planning Authority in the development control is in the establishment of State Planning Committee (SPC). The main committee in determining the direction of urban planning at the state level is the SPC, established under the provisions of the Town and Country Planning Act 1976 (Act 172).

State Planning Committee consists of number of persons that hold different portfolios. SPC is chaired by Menteri Besar or the Chief Minister and followed by a Deputy Chairman, a member of the State Executive Council (that appointed by the State Authority), and other not more than three members (that appointed by the State Authority from amongst the members of the State Executive Council), at least one of the member portfolio is related to town and country planning in the State, the State Secretary, the State Director, the Secretary of the Committee; the State Director of Lands and Mines, the Director of the State Economic Planning Unit, the State Director of Public Works, the State Legal Adviser, the State Financial Officer, the State Development Officer, the State Director of Environment, and additional of four members. Secretary of SPC is the State Director of Town and Country Planning Department of pursuant to section 4 (1) (d) of the Town and Country Planning Act 1976. In addition, he was the principal adviser to the SPC in respect of matters relating to the duties, town and country planning in accordance with section 4 (8).

In brief, the planning system at the state level involved more technical members from the State Government itself compared to the federal level. Besides that, there is a need of town and country planning background member in the organizations. This shows that the planning control at State level is more efficient and reliable since most of the members have the knowledge in handling physical planning development. 7

There is difference between state planning committee and state planning authority by which the state planning committee will touch on mainly on the technical part. However, in current practice, some of the tasks of state planning committee were not performed which the output is crucial in terms of physical planning.

The director of state planning authority is also the advisor to the state planning committee. The State Planning Committee is responsible to promote in the State, the conservation, use and development of all lands in the State, to regulate, control, plan and co-ordinate all development activities in the State, to advise the State Government on matters relating to the conservation, use and development of land in the State. Apart of that, to undertake, assist in and encourage the town and country planning and its methodology collection, maintenance and publication of statistics, bulletins and monographs and other publications.

Regarding to the roles of SPC above, it is obviously relevant to the National Land Code 1965 which stated that land is a State matter. Thus, every development on going on the land of a state is monitoring and under the power of the State Government.

iv. Local Planning Authority (LPA)

Under Section 5(1) of Act 172, it is evidently stated that every local authority must be the local planning authority for the area of the local authority. However, for any area that does not have local planning authority within the State, the State Director will be the local planning authority and performs the functions of the local planning authority in relation to that area, stated in Section 5(2). This noticeably reflects that the State still has the authority in development control system whilst it is clearly mentioned that local authority is the local planning authority.

Furthermore, the State Planning Committee has also played the same function of Local Planning Authority when section 4(4)(aa) is the identical to section 6(1). Section 4(4)(aa) states the function of State Planning Committee which is to regulate control, plan and coordinate development of all lands in the State whereas section 6(1) express about the function of Local Planning Authority as to regulate control, plan and co-ordinate development of all lands and buildings within its area.

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From these both statements, it can be seen there is an overlapping role between these two authorities. It means that the role of development control that is supposedly conducted by the Local has taken over by the State. This is really unfair as the power of local planning authority has been limited and diminished in development control system.

Under Section 22(2) claimed that the local planning authority shall refer to any development plan under preparation or to be prepared which are the Structure Plan and Local Plan, into consideration in dealing with an application for planning permission. This is irrelevant because local planning authority should not refer to any development plan under preparation or to be prepared as the actual status of the development cannot be guaranteed in the future because it has not been gazetted yet. The local planning authority should necessarily have a temporary reference or interim development of land as the base reference for the development while the development plans are being gazetted. Not only that, even if the development plans are at the draft level, it is still irrelevant to take as a reference for approval of planning permission.

In Section 22(2A) of the Town and Country Planning Act 1976 (Act 172) states that the State Planning Committee should seek advice from the National Physical Planning Council on three categories of development in the process of granting planning permission. The three types of devel...