Legal and Institutional Framework Regulating Town and Country Planning System in Malaysia:

Challenges and Way Forward

Ainul Jaria Maidin
ainulj@iium.edu.my

Introduction

Law, regulations, rules, standards, guidelines, and circulars regulates and provides guidance to the
authorities and all the different professionals involved in the land use planning and development control
regime in achieving an organised living space that is in consonant with the national and state policies. The
law determines the limits and manner of exercising the powers. Land use planning and development
control is an important process that is core of a country’s development. Lewis Keeble defined town and
country planning as,1 that it is the art and science of ordering the use of land and the character and siting
of buildings and communication routes so as to secure the maximum practicable degree of economy,
convenience and beauty. Bruton and Nicholson argues that town planning in practice involves much more
than the production of plans and the control of development. Besides producing plans for physical
change, and controlling private and public development in accordance with these plans, town planners
also attempts to obtain finance to implement the proposals, or seeking to influence other bodies to
implement the proposals; town planners are attempting to relate the loosely-defined sectoral national
policies for social, economic and physical change to the social, economic physical and political realities
of the area in which they work.2 The process includes the identification of strategy, achievement of goals,
underlying norms and values, directions to follow and actions needed to realise these. It is done by
integrating social, economic, political, psychological, anthropological, and technological factors,
concerned with the past, present & future.

In reality, town planning is extremely complex, dealing with matters that are highly inter-related,
surrounded by uncertainty and very much affected by the ideology of the planners and the leadership. In
recent years, town planning practice has begun to adapt to this reality, and under the pressures created by
structural changes in the economy is being shaped into a system which is concerned with the management
of change in the environment. In addition to the traditional roles of plan production and the control of
development, it is also concerned with managing the allocation of resources in a way which achieves
policy objectives set out in the development plans.

1
Lewis Keeble, (1969), Principles and Practice of Town and Country Planning. London: Estates Gazette.
2
Bruton MJ and Nicholson DJ. (1987), Local Planning in Practice, Hutchinson, London. p.51

1
The planning system has a positive role to play in guiding the appropriate development to the right place,
as well as preventing development which is not acceptable. It must make adequate provision for
development and at the same time take account of the need to protect the natural and built environment,
within the local and international obligations. It fails in its function whenever it prevents, inhibits or
delays development which should reasonably have been permitted. It operates on the basis that
applications for development should be allowed, having regard to the development plan and all material
considerations, unless the proposed development would cause demonstrable harm to interests of
acknowledged importance. Although practice varies from one locality to another in the land use planning
process there is usually a recursive sequence in the way participatory, technical and political inputs to this
process function to establish land use objectives, explore growth scenarios, test out development
alternatives, and arrive at land use decisions.3

This paper discusses the issues influencing the formulation of planning policies, the implementation of
the legislation and the powers of the planning authorities with the aim of setting out the challenges and
the possible ways of overcoming the challenges.

II. Formulation of Planning Policies

Historically, the landowners were free to use their land in any way they wished, subject only to the
limitations imposed by the State Authority upon alienation,4 and any common law obligations placed
upon the landowner. However, at present there has been a paradigm shift in the nature of the individual
freedom to use his land. Individual freedom has constantly been encroached upon with various
restrictions in order to ensure the promotion of long term interests of the general public. As such the
planning policies will need to change from time to time to ensure it is in tandem with the other
development policies of the society.

McAuslan promoted three competing ideologies of planning law:5

 First, that the law exists and should be used to protect private property (the traditional common
law approach to the role of law);

3
Chapin. F.S and Kaiser, E.J (1979). Urban Land Use Planning. Th ird Edition. Urbana: University of Illinois
Press p.23
4
It is important to note that in the process of forming the Federation, the states forming the Federation, agreed to
surrender most of their powers to the Federal Government except in matters relating to land, local government,
religion and water. These matters are listed in the State List in Schedule 9 Lists II, IIA, III, IIIA of the Federal
Constitution of Malaysia, 1957.
5
Mc Auslan, P., Ideologies of Planning Law, (Oxford, Pergamon Press, 1980) at pp.3-7.

2
  Secondly, the law exists and should be used to advance the public interest if necessary against the
interest of private property (the orthodox public administration and planning approach to the role
of law);
 Thirdly, the law exists and should be used to advance the cause of public participation against
both the orthodox public administration approach to the public interest and the common law
approach of the overriding importance of private property. (the radical or populist approach to the
role of law).6

McAuslan’s view that law must be used to advance public interest if necessary against the interest of
private property,7 facilitates planning control. However, on the other hand, there is an entrenched natural
law principle, calling for the inviolability of the private right to property,8 that holds that planning control
is an interference with proprietary rights, and that potential developers are entitled to planning permission
in the absence of valid reasons.9 The position in Malaysia very similar to all modern societies where the
sanctity of private property rights are protected and enshrined in Article 13(1) of the Federal Constitution
of Malaysia (“Federal Constitution”)10 which provides that no one shall be deprived of property save in
accordance with law and property owner to be adequately compensated in the event the State acquires
their land compulsorily.11

Adam J, in Liew Peck Lian & Ors v The Conservator of Forests, Johore,12 held that private property
rights should only be disturbed for very good reasons. In order to provide protection against the growing
powers of the modern governments, as well as to safeguard the rights of the citizens, almost all
constitutions in the world enshrine the sanctity of private property rights and sanctity of the principles that
privately owned property should not be interfered with except in accordance with law. This concept owes
its roots to the utilitarianism concept, in which social welfare or public demands are considered supreme
over individual interests.13 Private landowners strongly believe that land ownership is endowed with a

6
Ibid.
7
McAuslan, P., op. cit. note 6.
8
Locke, J., Second Treatise on Government, edited with an introduction by Macpherson, C.B., (Hackettt Publishing
Company Inc., Indianapolis, Cambridge, 1980) Chapters X & XI. Online source from
https://www.libertarianism.org/columns/john-locke-justification-private-property
9
Grant, M., Urban Planning Law, (London, Sweet and Maxwell, 1982) at p.334.
10
Article 13(a) of the Federal Constitution of Malaysia 1957, where it provides that ‘No one shall be deprived of
their property save in accordance with law. The law here refers to the Land Acquisition Act 1960, which provides
for compulsory acquisition of privately owned lands for purposes of promoting public interest.
11
Article 13(b) of the Federal Constitution of Malaysia 1957.
12
Liew Peck Lian & Ors v The Conservator of Forests, Johore [1961] MLJ 117 at p.118.
13
Court in Che Nik bte Bakar v Pentadbir Tanah, Kuala Krai [1997] 5 MLJ 517 applied the doctrine of salus populi
suprema lex (welfare of the people is the supreme law) in rejecting the plaintiff’s claim based on the inviolability of

3
‘right to develop’ and to benefit to the maximum from the land without restraint,14 as land ownership is
endowed with the right to air space and the right to the surface below; right to support of land; right to
access to foreshore, river or public place.15 This statutory right derived from the Latin maxim, cujus est
solum ejus est usque ad coelum et ad inferos, means whosoever owns the surface of the earth owns also
the entire airspace above it, including the right to extract, move or use rock material, right to fell, clear,
destroy or use forest produce.16

The owner's lawful use and enjoyment of his land is exclusive but not absolute, since such rights are
limited to the extent as is reasonably necessary to the lawful use and enjoyment of the land. The rationale
for this is to ensure a balance is made between individual rights of enjoyments and the overall public right
to utilise that property for the common good if necessary. The state will intervene to balance the benefit
of the public interest over the individual right.17

Development Plans as Blueprint for Development Control

The general planning policy regulates the planning of the development and use of all lands and buildings within
the area of every local authority in a State.18 The general planning policy for Peninsular Malaysia is derived
from the country’s National Development Policies. There are three principal Government development policies,
which have been formulated to become the trust for national development planning and implementation. The
National Development Policies were formulated by the Government to form the basis of, and act as guidance
for, development within the country from time to time. Although these Government development policies are
mere guidelines, they nevertheless have assumed an important role in the country’s development process. These
policies include Vision 2020, the National Development Policy, the National Five-Year Development Plan and
other policies such as the National Urbanisation policy, total planning and development doctrine, the policies
incorporated in the development plans.

the land where the dispute was concerning the right of the land administrator to create a public right of way over
private land.
14
Lee, L.M., Abdul Mutalip Abdullah & Alip Rahim, Town Planning in Malaysia History and Legislation (Penang,
School of Housing, Building and Planning University Sains Malaysia, 1990) at p.131.
15
National Land Code 1965 s.44
16
S 45 of the National Land Code 1965.
17
See Lacroix v The Queen (1954) DLR 470, where it was stated that in cases involving rights over air space, the
individual landholder has limited right to use the air column above his land. One of the modern developments over
the common law concept is that air and space are not considered as a subject matter of ownership as it all falls in the
category of omnium communis.
18
TCPA 1976 (Act 172) s 3; Federal Territory (Planning) Act 1982 (Act 267) s 3,

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Article 91(5) of the Federal Constitution of Malaysia (“Federal Constitution”) provides that the National
Land Council has a duty to formulate a national policy for the promotion and control of the utilization of
land throughout the Federation for mining, agriculture, forestry, or any other purpose, and for the
administration of any related laws. The policy is formulated from time to time in consultation with the
Federal Government, State Governments and the National Finance Council. It is mandatory on the
Federal and State Governments to follow such policies since the policies are made in consultation with all
the State Governments. Article 91(6) Federal Constitution provides that the Federal Government or the
Government of any State can consult the National Land Council in respect of matters relating to the
utilization of land or in respect of any proposed legislation dealing with land or of the administration of
any such laws, and it shall be the duty of the National Land Council to advise the government on such
matters.
The Federal Government can influence the State Governments in the formulation of National land policies
through the consultation with the Council. The resolutions of the Council are treated as policies agreed to by
the States of Peninsular Malaysia by virtue of Article 95E of the Federal Constitution which excludes the
States of Sabah and Sarawak from, inter alia, national plans for land utilisation and development. Generally,
policies that are made by the National Land Council are not legally binding as they are purely administrative
in nature. However, provisions can be included in statutes in order for such policies to have legal and
binding effect upon the administrators (the State and Federal government) and the public.

The State Authority is responsible for making the general policy in respect of the planning of the development and
use of all lands and buildings within the area of every local authority in its State.19 Section 3 TCPA 1976
provides that a State Authority may make rules or guidelines to direct the State Planning Committee or any
local planning authority on aspects related to the implementation of the general planning policy, as and
when the need arises, so long as they do not conflict with any of the provisions of the TCPA 1976. The
power to make rules are exclusive and discretionary powers vested in the State Authority.20 The rights of
the State to formulate land use policies, rules and procedures specific to the State is to ensure a balance
between the Federal policies and State’s interests.

However, despite the underlying philosophy that planning process should promote and protect the public
interests, it somehow appears to protect and hence regulating private property rights. The State Authority
often prioritises development projects for the benefit of economic gains. This defeats the whole purpose

19
Section 3 of the TCPA 1976 and Federal Territory (Planning) Act 1982 (Act 267) s 3.
20
Section 58(1) of the TCPA 1976.

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of the planning law ideals, that land development must guarantee protection of long-term interests of the
entire community rather than limiting its role to protection of personal rights of private landowners.21

The policies to a certain extent defines the legal framework that is put in place. The preceding paragraph
will set out the salient features of the legal framework and the issues that need to be addressed to improve
the existing system.

III. Legal Regulatory Framework

Matters relating to town and country planning in the Peninsular Malaysian States at present are regulated
by the TCPA 1976. The Act is a Federal law enacted principally to ensure uniformity of law and policy,
and to make laws for the proper control and regulation of town and country planning in the local authority
areas in their respective States of Peninsular Malaysia. The Court in Tetuan Sri Bangunan Sdn Bhd v
Majlis Perbandaran Pulau Pinang22 observed that, the TCPA 1976 is both a consolidating as well as a
comprehensive act in respect of planning law in the country.

The TCPA 1976 provides the State Authority with the overall responsibility for planning the use and development of
all lands in the State. It also confers executive authority on the Federal Government over certain matters in relation to
the control and regulation of town and country planning. The sovereign Malay States, having used to
administering their respective States without much external control, were not keen to part with their
powers to the Federal Government when the Federation of Malay States was formed in 16 September
1963. As such it was necessary to delineate in the Federal Constitution (which came into force on 31
August 1957), the responsibilities and jurisdiction of the Federal and State Governments accordingly by
itemising and classifying the matters into three different Lists, that is the Federal, State and Concurrent
Lists. The ‘Federal List’ is List I set out in Schedule 9 to the Constitution, being the list enumerating the
matters with respect to which Parliament may make laws; the ‘State List’ is List II also set out in Sch 9,
being the list enumerating the matters in respect of which a State Legislature may make laws; and the
‘Concurrent List’ is List III of Schedule 9.23 ‘Land’ is listed in the ‘State List’ item 2, together with
jurisdiction over agriculture and forestry is listed in item 3. A State Authority is vested with the entire
property in all State lands.24 Thus, the State Authorities have final and ultimate authority on any dealings

21
Moore, V., A Practical Approach to Planning Law,(UK, Blackstone, 1995) at p.1; See Abdul Hamid Embong JC.
in Vadivelu a/l Palanisamy v M. Radhakrishnan [1996] 1 CLJ 224 at 229 said that ‘rapid land developments and
alienation needed the interference from the state.’ This case dealt with the right of the Land Administrator to create a
right of way (“LAROW”) for the public over private land.
22
Tetuan Sri Bangunan Sdn Bhd v Majlis Perbandaran Pulau Pinang [1998] 2 AMR 1053
23
Under Federal Constitution 1957 Articles 74, 77
24
National Land Code 1965 s 40

6
relating to land including alienation, subdivision, type of use, extraction of minerals, compulsory
acquisition and reservation of land.

The TCPA 1976 was drafted by the Federal Parliament for promoting uniform law in matters related to
town and country planning. The other reason for passing the Act was based on the Government policy of
seeking to provide more comprehensive and tighter control over land development activities all over the
country via planning regulations. The Act is also aimed at establishing an integrated relationship between the
Federal Government and State Authorities on matters related to town and country planning, as laid down in the
Federal Constitution. The Act confers executive authority on the Federal Government over certain matters
in relation to the control and regulation of town and country planning. Despite the executive powers
conferred on the Federal Government, it has very minimal powers in respect of town and country
planning since land is a state matter. The Federal Government and State Authorities are however, required
to consult each other in the property development process in the States to ensure integration of Federal
and State Government policies in the course of carrying out development activities.

The State Authority can bring the Act into operation in any manner the State Authority thinks most
advantageous, convenient, expedient, or practicable, whether by appointing different dates for different
provisions of the Act, by appointing different dates for different local authority areas or parts thereof, by
bringing a provision into operation generally in the State and at the same time declaring that, for or until such
time as may be specified, the provision will or will not apply to or in relation to a local planning authority or the
area or any part of the area of a local planning authority to such extent only as may be specified, or in any other
manner.25

The TCPA 1976 is only applicable to the eleven Peninsular Malaysian States, i.e. Johore, Kedah,
Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor and Terengganu,26 and is
not applicable to the Federal Territories of Kuala Lumpur and Labuan, Sabah and Sarawak. The relevant
Act applicable to the Federal Territories is the Federal Territory (Planning) Act 1982 (Act 267). The
applicable law in Sabah is the Town and Country Planning Ordinance 1950 (Sabah Cap 141); and in
Sarawak is the Town and Country Planning Ordinance 1952 (Sarawak Cap 87).27

25
Preamble to the TCPA 1976
26
TCPA 1976 s 1
27
As to matters in respect of which Parliament is vested with the right to make laws for the purpose of ensuring
uniformity of law and policy see Article 76(4) of the Federal Constitution; and as to provisions relating to the power
of Parliament and the State Legislature to make law see arts 73, 74.

7
The main features of planning legislation in Malaysia are as follow:
i. Impose a duty on the state and local planning authorities to prepare development plans
ii. Provide a comprehensive legal definition of development
iii. Development control by imposing a requirement to obtain planning permission for that
development
iv. The right of appeal against rejection of application for planning permission by the local
planning authority
v. The power to prevent and remove unauthorized development
vi. Powers of the government in respect of dealing with planning applications and making or
amending development plans;
vii. Role of Federal Government: National Physical Planning Council (NPPC) sets the
general policies and overall policy framework, but the overall executive power and
responsibility for land-use planning lies with the relevant State Authorities
viii. Role of the Local Planning Authority in administering and managing the land use
planning system, development control and enforcement of offences.
ix. Powers of the Planning Appeal Board in respect of the appeals under the Act.

IV. Organisation of Planning Administrative Authorities

Planning administration is handled at three different levels, the Federal, State and local government
created based on the provisions of the Federal Constitution, which delineates the mandates,
responsibilities and jurisdictions of the Federal and State Governments.28 This is the essence of federalism
that has been described as “the establishment of a single political system, within which, general and
regional governments are assigned to coordinate authority such that neither level of government is legally
or politically subordinate to the other.”29 The administration of the planning system and development
control is within the exclusive powers of the state and local governments despite of their relying heavily
on the Federal government for funds and other resources.30

28
See articles 74, 95B and Schedules 9-10 of the Federal Constitution of Malaysia of 1957.
29
Watts, R.L., New Federations: Experiments in the Commonwealth,(Oxford, Clarendon Press, 1966) at p.13.
30
For a detailed discussion on the historical aspects related to organisation of the Malaysian local government
system, see Taylor W.C., Local Government in Malaya,(Alor Setar, Kedah Government Press, 1949).

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 a. National Physical Planning Council at Federal Level

In order to achieve coordinated and well balanced development the National Physical Planning Council
(“Council”) was established at the Federal level, pursuant to section 2A TCPA 1976. The inclusion of the
functions of the Director General of the Federal Department of Town and Country Planning and the
introduction of Regional Planning Committee. the problems of lack of uniformity in the implementation
of the planning legislation and rules in the states, the Council was established in 2002, to ensure that there
is some form of coordination in the implementing and enforcing the planning laws in the all the states.31

The Council acts as advisor and facilitates the exchange of views between the Federal Government and
the State Governments. The Council assumes an important role in the formulation of policies to promote
town and country planning as an effective and efficient instrument for the improvement of the physical
environment in the country32. The Prime Minister chairs the Council meetings. The Attorney General in
response to an issue raised at the Cabinet meeting on the 24th November 2004 regarding the powers of
Council opined that,33 all decisions and advise by the Council must be abided and implemented by all
States as the decision and advise were made in consensus by all the Head of the State EXCO or
representatives who attended the meeting. Furthermore, the decision and advise from the Council are
related to the National policies which must be coordinated between the Federal and State governments.

The Council will be able to identify the potential area in the country that needs special treatment in terms
of planning. The relevant states will be consulted in the process of identifying the area to be gazetted. The
functions of the Council are also to ensure that the town and country planning process will be able an
effective and efficient instrument for the improvement of the physical environment, which will be able to
promote the achievement of sustainable development in the country.34 The Council is empowered to
approve the National Physical Plan prepared by consulting every State Authority and all other relevant
authorities. The TCPA 1976 also stipulates that it shall be the general duty of the Federal Government and

31
The provision on the Council was inserted into the TCPA 1976 by the Town and Country Planning (Amendment)
Act 2001 (Act A1129) s 7 wef on 1 st March 2002.
32
Subsection 2A(2)(a) TCPA 1976
33
The extract from the minutes of Cabinet Meeting on the 24 th November 2004 reads as follows, “Jabatan Peguam
Negara berpendapat bahawa semua keputusan dan nasihat Majlis Perancang Fizikal Negara perlu dipatuhi dan
dilaksanakan oleh semua Negeri kerana keputusan dan nasihat itu telah dibuat secara persetujuan bersama oleh
Ketua-ketua Eksekutif Kerajaan Negeri atau wakil Kerajaan Negeri yang menghadiri mesyuarat tersebut.
Tambahan pula keputusan dan nasihat Majlis Perancang Fizikal Negara adalah merupakan keputusan yang
berkaitan dengan dasar Negara yang memerlukan penyelarasan antara Kerajaan Persekutuan dan Kerajaan
Negeri.”
34
TCPA 1976 s 2A(2)(a)

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the government of every State to assist in ensuring that the objectives of the National Physical Plan are
achieved.35

The Council is also required to advise the Federal Government or the Government of any State, on
matters relating to the town and country planning required under the TCPA 1976,36 and to perform any
other functions conferred upon the Council under the Act.37 The Council must ensure that this process
does not conflict with the policies outlined in the National Development Policy. The Federal Government
wishes to have the final say in all new development of townships, major infrastructure projects and
projects located in environmentally sensitive areas by ensuring that the states and local planning authority
refers the matter to the Council for advise. This is in line with the aim of establishing the Council, which
is to ensure there is efficient coordination in development planning in the states, which have been
handling the planning matters in piecemeal manner to suit the states development policies to the exclusion
of the problems it may cause to the neighbouring areas.

Though the organisation of the planning administration places the Council at the apex of a pyramid of
power, the powers of the Council is only advisory, coordinative and consultative. The Council has no
executive power to sanction any defaulting parties. This makes it difficult for the Council to exercise
effective control over the State Authority which fails to comply with the policies formulated at the
national level.

b. State Level Administration

Similar to the administration of town and country planning at the Federal Level, and with certain
variations in the jurisdictional powers, the TCPA 1976 also provides for three levels or bodies endowed
with powers for land planning and development control at the state level. These bodies include the State
Authority, the State Planning Committee and the Local Planning Authority. The State Authority is
recognised as the ultimate authority over land and development within its state boundaries. It has power
to issue directions and policies that must be complied with by the local planning authority. It is also
entrusted with the powers to formulate the planning policies.38 The State Authority may make rules or
guidelines to direct the Committee or any local planning authority on aspects related to the
implementation of the general planning policy so long as it does not conflict with any of the provisions of

35
TCPA 1976 s 6B(5)
36
TCPA 1976 s 2A(2)(b).
37
TCPA 1976 s 2A(2)(c)
38
TCPA 1976 s 3.

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this Act as and when the need arises. The Committee and the local planning authority are bound by such
rules and guidelines and must give effect to such directions (rules and guidelines) in all circumstances
except in situations where such directions are contrary to the provisions of the TCPA 1976. The State
Authority is also responsible to assent to the development plans prepared by the State Director and the
local planning authorities.39

The State Planning Committee is created pursuant to section 4, TCPA 1976.40 It is responsible for the
promotion of the conservation, use and development of all land in the State and is entrusted to advise the
State Authority on all matters related to land planning in the State. The Committee has considerable
control over the local planning authorities. It has powers to approve structure plans as well as authority to
require the local planning authorities to comply with its directives to prepare local plans and to submit
them for approval. The Committee has powers to give directions to the local planning authority, 41 thus
empowering itself with powers to control the decisions of the local planning authorities.

If the local planning authority fails to prepare the local plan or make the necessary alteration, repeals or
replacements to the local plan, the state planning committee has the power to direct the State Director to
prepare the local plans or make the necessary alteration, repeals or replacements42. The state planning
committee has the discretion to delegate the responsibility of preparing the special area plan either to the
State Director or the local planning authority43. The State Director of Town and Country Planning acts as
the principal adviser to the state planning committee on matters relating to town and country planning and
responsible for carrying out the decisions and implementing policies of the State Planning Committee.44

The respective State authorities are responsible for organising the local government and municipal
services and assume the position of “central government” to the local authority. The local planning
authority in Malaysia is the principal government agency, which exercises control at the local level. Thus,
this gives rise to lack of uniformity in the administration of town and country planning laws in the states
of Malaysia, despite the TCPA 1976 manifesting that it aims to promote uniformity in the planning law
applicable to the states.45 Before the 2001 Amendment to the TCPA 1976, the planning legislation has

39
TCPA 1076 Ss 10 and 15.
40
TCPA 1976 s 4.
41
TCPA 1976 s.4(5).
42
Section 16A TCPA 1976
43
Section 16B TCPA 1976
44
Section 4(8) TCPA 1976
45
TCPA 1976 Preamble.

11
given the local authorities direct power and responsibility for carrying on with the day-to-day
administration of land use control. State governments’ role in the administration of planning initially was
that of supervision and co-ordination of the manner in which those powers and responsibilities are
exercised. The State government, through the SPC was given a fair share of responsibility. The functions
of the SPC are clearly described in section 4 of the TCPA 1976. The State Director as the principal
advisor to the SPC is responsible for implementing the decisions and policies made by the SPC.

c. Local Government Level

Local authorities construct, operate, and maintain economic, social, and environmental infrastructure,
oversee planning processes, establish local environmental policies and regulations, and assist in
implementing national and sub-national environmental policies. As the level of government closest to the
people, they play a vital role in educating, mobilizing, and responding to the public to promote
sustainable development."46 A local authority is established pursuant to the Local Government Act 1976.
The local authority is established at the discretion of the State Authority wherein the State Authority can
in consultation with the Minister and the Secretary of the Election Commission declare and notify the
declaration in the Gazette, of any area in the State to be a local authority area, assign a name to such area,
define the boundaries of the area and determine the status of the local authority as to whether it is a
Municipal or District Council47. The local authority can only act according to what is expressly or
impliedly authorised or permitted by the Local Government Act 1976.

The TCPA 1976 was specifically legislated to confer on the local authority the role of a local planning
authority as the body responsible for the planning, control and conservation of all the lands and buildings
within their local authority area.48 This confers a primary physical planning responsibility at the local
level. The local authority with the role of a local planning authority is the body responsible for the
planning, control and conservation of all lands49 and buildings within its local authority area. This confers
a primary physical planning responsibility at the local level. In areas within a State, which do not come
under the jurisdiction of any local authority area, the State Director will assume the role of the local
planning authority. A local authority is a body corporate which can sue and be sued.50 However, being a
corporation created by statute, it can only act according to what is expressly or impliedly authorised or

46
Chapter 28 of Agenda 21: "Local Authorities’ Activities in Support of Agenda 21
47
Section 3 Local Government Act 1976
48
Section 5(1) TCPA 1976
49
50
Section 13 Local Government Act 1976

12
permitted by the statute providing for its establishment.51 A local authority will be deemed to have acted
ultra vires if it is proven to have carried out acts outside the boundaries of the statute providing for its
establishment.52

V. Issues Relating to Participation in Planning Decision Making Process

Land planning being a democratic process will naturally need to provide avenues for participation by the
various stakeholders including the public who will be affected by the development. Public participation in
Malaysia was introduced at an early stage when the Town Planning Enactment of the Federated Malay
States of 1927, where the law provided for the general town plans to be displayed for the public to make
objections and to propose recommendations on how to overcome the objections. Avenues for public
participation in the land planning decision making process is provided in the Town and Country Planning
Act 1976 (“TCPA 1976”). The Environmental Impact Assessment Order 1987 (“EIA Order 1987”) a
subsidiary legislation made pursuant to the Environmental Quality also provides opportunity to
participate.

Participation of the public and other stakeholders in the development planning process is an important
aspect of the planning process to ensure that just and fair decisions are delivered. It is essential to
establish a partnership between the planner, the local community and all related agencies must be
established in order to ensure everyone will take ownership and responsibility to support the successful
implementation of the plan. According to Goh, in order to have meaningful and effective public
participation, which is a very refined and delicate political process, thus, knowledge of the planning
process coupled with effective communication method to enable the related information to be available
is essential. There are various factors contributing to the failure of public participation in Malaysia as
gathered from the experience of the local planning authorities. The following paragraphs sets out
briefly the factors influencing effective public participation.

a. Knowledge of the Planning Process

Malaysians, at all levels, educated or uneducated have very limited knowledge of the planning
process. They are often not aware of the development plans preparation processes and unsure of their
rights. The NGOs are seen as representing their interest. The public often will not complain unless a

51
Refer eg section 13 Local Government Act 1976
52
Refer eg Aluminium Co of Malaysia Bhd v Ng Than Chai [1994] 3 MLJ 544; Penang Development Corp v Teoh
Eng Huat [1992] 1 MLJ 749; on appeal [1993] 2 MLJ 97, SC.

13
 particular problem effects their interest directly. They prefer not to interfere with their neighbour‟s
actions for fear of being branded as meddlesome and busybody. The nature of the Malaysian society,
which is multiracial, also prevents the public from complaining against the activities of a neighbour
who is from a different race for fear of raising racial sentiment.

b. Lack of Effective Communication Techniques

Information about the planning process is vital in order for the public to have an informed input
in the planning decision making process. There are two problems faced relating to communication of
information. One is lack of information and the other is, no effective methods for providing
information. The public often faces difficulty in accessing the relevant information. The planning
register is often not available for public viewing. The plans prepared by the planners, use technical
jargons that are difficult for laypersons to comprehend. The public is often unaware of the preparation
of the plans except by advertisements in the daily newspapers. As such people living in rural areas are
not aware of the existence of such plans and will not be able to provide their views, which are very
relevant. The public have problems in accessing reports and studies commissioned by the government
where useful and specialised information relating planning and environmental aspects are gathered.
Internet facilities are not fully utilised to disseminate information to the public.

c. Representation of Participants
The planning authority often disregards the importance of public participation and has not done
enough to promote effective public participation. Both Federal and State Government development
projects can be approved without requiring planning permission. They are merely required to consult
the State Planning Committee on any development activity that it proposes to carry out within the state.
This exempts them from the requirement of applying for planning permission. As such public
participation can be negated and the development project can be allowed to proceed without any input
from the public.

d. Political Involvement
Despite the fact that the local planning authority that is responsible to prepare the development plan, the
local councilors often seeks to exert their influence in ensuring the successful implementation of
government development policies. Assemblymen from different constituencies of the state are elected to
form the State Government. The local councillors are appointed from among members or supporters of
political parties that have won the election and formed the State Government. These councillors may not
be the best people to represent the interests of the residents within their local authority area, but their
influence cannot be avoided.

14
 Public awareness is an important tool to ensure that development process takes into
consideration and incorporates all the necessary recommendations and comments made by the public at
the time of their objection. As has previously been discussed, the aim of allowing public participation is
to ensure that urban development plans are in agreement with the wishes of the people, which in turn
will ensure a higher degree of public compliance with the plan. It appears that the planning authorities
are very concerned in ensuring successful implementation of the country‟s development policies
formulated to boost the economy rather than taking into consideration the effect of such activities on
the environment and the public.

Apparently, the avenues for public participation appear not to have been fully utilised and the planning
authorities have not done much to promote effective public participation. In order for the public to
participate, they must be equipped with all information necessary for them to make out their objections.
The importance of providing access to information to the citizens is undeniable, as such it is essential to
ensure that the public will have access to sufficient information so as to formulate constructive
objections. In order that the Malaysian society be more actively involved in the decision making
process, the Malaysian government would be expected to move away from the monologue concept,
which is being practiced at present. More conveniently by adopting a dialogue option would be more
conducive to provide opportunity to the public to voice their concerns rather than merely accepting
what the government chooses to approve. The NGOs must also be allowed to participate at all levels of
planning decision making process. Factors such as lack of information, lack of public awareness,
limited government initiative to promote effective participation, as discussed above have contributed
towards reducing the effectivity of public participation in planning decision making. Awareness of the
surrounding area by the public would be useful to ensure that planning decisions take into
consideration the wishes of the residents living in the area. Local planning authorities have to realise
that through better participation and interaction between the public and the local authority, a win-win
situation could come into existence in which all stakeholders of the planning process can benefit from
this smart partnership.

15
 VI. EXERCISE OF POWERS OF PLANNING AUTHORITIES

A local authority can only act according to what is expressly or impliedly authorised or permitted by the
Act under which it was established: see the cases cited above. The Local Government Act 1976 does not
include planning powers under the purview of the powers it provides for local authorities. As such, the
TCPA 1976 has been enacted to regulate town and country planning practice and procedures.

The functions of the local planning authority amongst others include regulating, controlling and planning
the development and use of all lands and buildings in its local authority area53. In practice, though the
local planning authority is at the lowest level in the planning hierarchy, it assumes the role of principal
body responsible for the management and execution of the daily planning administration matter.
However, the local planning authority is directly answerable to the State Planning Committee. The local
planning authority is expected to perform other functions as the State Authority or the State Planning
Committee assign and must furnish all the necessary information relating to activities whenever required
by the State Planning Committee54. A local planning authority can perform all other functions that are
supplemental, incidental, or consequential to any of its functions and do all such things as may be necessary
or expedient for carrying out its functions under the Act.55 The building plan approval is made subject to
the provisions of the Street, Drainage and Building Act 1974. The local authority has a division which
approves building plans.

a. Protection of the Local Authority in Performance of Planning Functions

Every member and agent of a local planning authority, every authorised person, and every assistant or
workman accompanying or assisting an authorised person in the performance of his functions under the TCPA
1976 will be deemed to be public servants6 for the purposes of the Penal Code.56 An ‘agent’ is a person
employed to do any act for another or to represent another in dealings with third persons. An ‘agent’ is a
person who has the authority, express or implied, to act on behalf of another, and who consents to act. The
functions of an authorised person include all the duties and powers of the local planning authority prescribed
by the TCPA 1976. The local planning authority can exercise its powers as and when the need to do so
arises depending on the needs of the time.

53
Section 6(1) TCPA 1976
54
Subsection 6(1)(c) and Subsection 5(4) TCPA 1976
55
TCPA 1976 s 6(2).
56
TCPA 1976 s 53.

16
In Bencon Development Sdn Bhd v Majlis Perbandaran Pulau Pinang,57 the first defendant was a local
authority under the Local Government Act 1976 (Act 171), the Street, Drainage and Building Act 1974
(Act 133), and a local planning authority pursuant to the TCPA 1976. It was held therefore, to be a public
authority within the Public Authorities Protection Act 1948 s 2, and any suit, action, prosecution or other
proceeding against it would have to commence within 36 months next after the act, neglect or default
complained of.

Similarly, section 95 of the Street, Drainage and Building Act 1974 provides for protection of public
authorities. The Federal Court in Majlis Perbandaran Ampang Jaya v. Steven Phoa Cheng Loon & Ors.58
The causes of action in MPAJ v Steven Phoa Cheng Loon & Ors (supra), were founded on negligence and
nuisance. The relevant question for determination by the Federal Court was whether it was fair, just and
reasonable to impose a liability on a local authority such as MPAJ for pure economic loss to the plaintiff
for MPAJ’s failure to come up with and implement the promised drainage master plan etc to ensure that
no accident of the kind that caused the collapse of Block 1 would occur to Blocks 2 and 3 of the Highland
Towers in the Mukim of Hulu Klang within the local authority area of MPAJ. The answer was given in
the majority judgment delivered by Abdul Hamid Mohamad FCJ (Arifin Zakaria FCJ concurring). In para
86, it was held that Malaysian courts will have to consider the effects of s. 3 of the Civil Law Act 1956.
After considering "public policy" and "local circumstances", his Lordship held that it was not fair, just
and reasonable to impose such a burden on MPAJ or other local authorities in this country in similar
situations arising from negligence and nuisance (paras 82 and 84). It appears plain to me that the ratio
expounded in the majority judgment of the Federal Court excluded MPAJ or other local authority from
liability in any claim by a plaintiff for pure economic loss arising from negligence and nuisance. The
Federal Court was not asked to determine and has therefore not decided on the issue of whether MPAJ or
other local authority such as DBKL is insulated or immunized against liability for pure economic loss
arising from breaches of statutory duties. In my view, DBKL may rely on the majority judgment of the
Federal Court to exclude liability from the Supermarket’s claim for pure economic loss based on
negligence and nuisance only. With the utmost respect, the majority judgment does not provide DBKL
with an insulation or immunization against its liability arising from breaches of statutory duties.

In Uda Holdings Bhd. v Koperasi Pasaraya Malaysia Bhd. & Other Appeals (Court of Appeal,
Putrajaya),59 the Court of Appeal distinguished the claim for pure economic loss based on the tort of

57
Bencon Development Sdn Bhd v Majlis Perbandaran Pulau Pinang [1999] 2 MLJ 385
58
Majlis Perbandaran Ampang Jaya v. Steven Phoa Cheng Loon & Ors [2006] 2 CLJ 1 FC.
59
Uda Holdings Bhd. v Koperasi Pasaraya Malaysia Bhd. & Other Appeals (Court of Appeal, Putrajaya) [Civil
Appeal Nos: W-02-735-2006, W-02-653-2006 & W-01-79-2006] (26th July 2007)

17
public nuisance and breach of statutory duty. The court referred to the judgment of the Federal Court in
Majlis Perbandaran Ampang Jaya v. Steven Phoa Cheng Loon & Ors.60. The causes of action in MPAJ, v.
Steven Phoa Cheng Loon & Ors, were founded on negligence and nuisance. The relevant question for
determination by the Federal Court was whether it was fair, just and reasonable to impose a liability on a
local authority such as MPAJ for pure economic loss to the plaintiff for MPAJ’s failure to come up with
and implement the promised drainage master plan etc to ensure that no accident of the kind that caused
the collapse of Block 1 would occur to Blocks 2 and 3 of the Highland Towers in the Mukim of Hulu
Klang within the local authority area of MPAJ. The answer was given in the majority judgment delivered
by Abdul Hamid Mohamad FCJ (Arifin Zakaria FCJ concurring). In para 86, it was held that Malaysian
courts will have to consider the effects of s. 3 of the Civil Law Act 1956. After considering "public
policy" and "local circumstances", his Lordship held that it was not fair, just and reasonable to impose
such a burden on MPAJ or other local authorities in this country in similar situations arising from
negligence and nuisance (paras 82 and 84). The Federal Court excluded MPAJ or other local authorities
from liability in any claim by a plaintiff for pure economic loss arising from negligence and nuisance. The
Federal Court was not asked to determine and has therefore not decided on the issue of whether MPAJ or
other local authority such as DBKL is insulated or immunized against liability for pure economic loss
arising from breaches of statutory duties. In my view, DBKL may rely on the majority judgment of the
Federal Court to exclude liability from the Supermarket’s claim for pure economic loss based on
negligence and nuisance only. With the utmost respect, the majority judgment does not provide DBKL
with an insulation or immunization against its liability arising from breaches of statutory duties.

b. Extent of Planning Authorities Discretionary Powers

The TCPA 1976 incorporates a system of development control, wherein it provides that planning
permission must be in conformity with the local plans.61 However, the continuance of existing non-
conforming use is nevertheless lawful.62 In considering applications for planning permission, the local
planning authority "shall not grant planning permission if … the development … would contravene any
provision of the development plan."63 Development plan means the local plan or the structure plan (if
there is no local plan in existence) for the area. This appears to give wider scope in the consideration of
planning permission than provision of Section 18(1) of the TCPA 1976 which require the use of land or
building to be in conformity with the local plan. If there is no development plan for the area, the
application for planning permission must be notified in writing informing the adjoining landowners

60
Majlis Perbandaran Ampang Jaya v. Steven Phoa Cheng Loon & Ors [2006] 2 CLJ 1 FC
61
Section 18(1) of the TCPA 1976.
62
Section 18(3) of the TCPA 1976.
63
Section.22(4)(a) of the TCPA 1976.

18
wherein they are given the right to object and such objections must be taken into consideration in dealing
with the application for planning permission.64 The local planning authorities in West Malaysia (except
the Federal Territory) would have to adhere to the approved development plan and may not deviate from
it as such taking away some of the desired flexibility in the development plan system.

In order to ensure that the policies and development plans are adhered to, the law further provides that
anyone who wishes to undertake land development within the local authority’s area of jurisdiction must
obtain prior permission from the respective local authority and complied with.65 Development is defined
to mean,66 “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, or the subdivision or amalgamation of lands.”

The phrase ‘material change’ is not defined in the TCPA 1976 and depends very much on the
interpretation of the local planning authorities, which often refer to the English and Welsh, practice that is
mainly based on court decisions on what is a material change.67 TCPA 1976 allows the State Authority to
prescribe certain material change of use for which no planning permission is necessary.68 Section 19(2)(g)
of the TCPA 1976, allows the State Authority to prescribe certain ‘material change of use’ for which no
planning permission is necessary (i.e. permitted development) while Section 58(2)(b) TCPA 1976 is an
open-ended provision, which permits the making of regulations for ‘the classes of use of land and
buildings.’ There is no provision in the TCPA 1976 to permit the State Authority to further define under
subsidiary legislation classes of use ‘not considered development’ as opposed to ‘permitted
development.’69

64
Sections 21(6) and 22(2)(c) of the TCPA 1976 have been tested in the courts wherein adjoining landowners have
taken the local planning authority to court for failure to inform them of the proposed development in the capacity of
adjoining landowners for example, Refer to discussion in Datin Azizah v Dewan Bandaraya Kuala Lumpur & Ors.
[1992] 2 MLJ 393; Lee Freddie & Ors v Majlis Perbandaran Petaling Jaya [1994] 3 MLJ 640 infra.
65
Section 19(1) of the TCPA 1976.
66
Section 2 of the TCPA 1976.
67
The practice of the Malaysian courts to refer to the English courts for guidance when there is a lacuna in the
Malaysian statutory provisions principally due to the provision of Section 3 of the Civil Law Act 1956 which
provides in Section 3, that the laws of England may be referred to except in matters related to real property.
Furthermore, the TCPA 1976 which was modeled after the England and Wales TCPA 1971 provides the judges the
authority to refer to English law whenever there is a lacuna in the Malaysian planning legislation.
68
Section 19(2)(g) TCPA 1976.
69
Section 22(2)(f) UK TCPA 1971 which was the model for Malaysian Planning Law, specifically provides for the
Secretary of State to make an order specifying classes of use of buildings or land where the use for any other
purpose within the same class "shall not be taken … to involve development of land. In England and Wales, The
Use Classes Order 1972 defines classes of use wherein a change of use within the same class are deemed not to
constitute development cited in Lee et.al. op. cit., note 23.

19
Interestingly the Federal Territory Planning Act 1982, unlike the TCPA 1976, provides that the Datuk
Bandar shall have power to grant or refuse planning permission irrespective of whether or not such
development is in conformity with the development plan.70 Further the FTPA 1982 also provides that in
dealing with an application for planning permission the Datuk Bandar "shall as far as practicable have
regard … to the development plan … and any other material consideration."71 This provision, which
provides for other material consideration presents an important element to the planning officials,
especially the flexibility that is often desired by them in executing their administrative duties. It appears
to be providing the planning authorities with discretionary powers in deciding whether to grant or not to
grant planning permission.

In the case of Datuk Bandar Kuala Lumpur v Zain Azahari Bin Zainal Abidin,72 the appellant appealed to
the Court of Appeal against the judgement of the High Court where an order of certiorari was granted to
the respondent. The Court of Appeal in dismissing the appeal held that the appellant in exercising the
discretionary powers granted by Section 22 FTPA 1982 must exercise it reasonably and in accordance
with the terms of the TCPA 1982. When the exercise of discretion was challenged on the grounds of its
unreasonableness, the court was able to examine the decision making process as well as to consider the
merit of the decision itself. Gopal Sri Ram AC J. held:73

"… [W]here the exercise of a discretion is challenged on grounds of vires, that is

illegality, or unreasonableness, the court is not confined merely to the decision-making
process, but may examine the merits of the decision itself. "

The court agreed that the planning authority and not the court should be allowed to decide whether the
planning approval should be granted or refused since the planning authority has access to the relevant
information and material. But if the circumstances render it necessary the court will be prepared to review
the powers of the local planning authority if it has acted in access of its powers.74 The authorities had the
power to approve development projects even if it is contrary to the provisions of the development plans.
This can be evidenced from the trend where the requirements of the New Economic Policy for increased

70
Section 22(1) FTPA 1982.
71
Section 22(4)(a) &(b) FTPA 1982.
72
Datuk Bandar Kuala Lumpur v Zain Azahari Bin Zainal Abidin [1997] 2 MLJ 17; On appeal to High Court
decision in Zain Azahari Bin Zainal Abidin v Datuk Bandar Kuala Lumpur [1995] 2 CLJ 478.
73
Datuk Bandar Kuala Lumpur v Zain Azahari Bin Zainal Abidin [1997] 2 MLJ 17 at p.32.
74
Refer Yian Sdn.Bhd. v Datuk Bandar Kuala Lumpur & Anor [1999] 3 MLJ 685 where the decision in Datuk
Bandar Kuala Lumpur v Zain Azahari Bin Zainal Abidin [1997] 2 MLJ 17 was followed; Majlis Perbandaran
Seberang Perai v Tropiland Sdn. Bhd. [1996] 3 MLJ 94; Kumpulan Perangsang Selangor Bhd. v Zaid bin Hj. Mohd
Noh [1997] 1 MLJ 789.

20
Bumiputra participation in the urban development sector, has seen the usage of the term ‘other material
consideration.’ This term is being used extensively in approving developments, which may at times be in
contrary to the approved structure plan. Economic policies are also an important element in the planning
permission approval process, where economic policies are given priority if it is considered to be able to
contribute to a local area or even the country’s economy.

In Pengarah Tanah dan Galian Wilayah Persekutuan v Sri Lempah Enterprise Sdn. Bhd,75 the court was
faced with the task of setting the limits to the powers vested on the Mayor of the Federal Territory of
Kuala Lumpur as well as planning authorities from the other Peninsular Malaysian states. Suffian LP
referred to English cases of Pyx Granite Co. Ltd. v Ministry of Housing and Local Government76 and
Fawcett Properties v Buckingham County Council,77 and held that English principles may be followed in
Malaysia pursuant to the provisions of the Civil Law Act 1956,78 which provides for accepting English
law in case of lacuna in the Malaysian law. The courts held that the following principles could be
followed:
a) the approving authority does not have an uncontrolled discretion to impose whatever conditions it
likes;
b) the conditions to be valid, must fairly and reasonably relate to the permitted development;
c) the approving authority must act reasonably and planning conditions must be reasonable;
d) the approving authority is not at liberty to use its power for an ulterior object, however desirable
that object may seem to be in the public interest.

Raja Azlan Shah CJ, “On principle and authority, the discretionary power to impose such conditions ‘as
they think fit’ is not an uncontrolled discretion to impose whatever conditions they like. In exercising
their discretion, the planning authorities must have regard to all relevant considerations and disregard all
improper considerations and they must produce a result which does not offend against common sense; the
condition to be valid must fairly and reasonably relate to the permitted development. Every legal power
must have legal limits, otherwise there is dictatorship. In particular, the stringent requirement that
discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In
other word every discretion cannot be free from legal restrain; where it is wrongly exercised, it becomes

75
Pengarah Tanah dan Galian Wilayah Persekutuan v Sri Lempah Enterprise Sdn. Bhd (1979) 1 MLJ 135.
76
Referred Pyx Granite Co.Ltd. v Ministry of Housing and Local Government (1958) 1 QB 554 in Court of Appeal
and on appeal to the House of Lords (1960) AC 260.
77
Fawcett Properties v Buckingham County Council (1950) Ch.543 in Court of Appeal and on appeal to House of
Lords (1961) AC 636.
78
Section 3 of the Civil Law Act 1956, provides that the English common law and rules of equity is applicable to
Malaysia, however only to the extent the local inhabitants and custom allows.

21
the duty of the court to intervene. In these days when public authorities have such great powers and
influence, there is a most important safeguard for the ordinary citizen; so that the courts can see that these
great powers and influence are exercised in accordance with law. The public bodies must be compelled to
observe the law and it is essential that a bureaucracy should be kept in its place.”
Suffian LP in the same case,79 held that, “In considering this applications, the Committee should act fairly
and not arbitrary. There must be no bad faith and no dishonesty, though in fairness to everybody
concerned nobody has suggested that on the part of the Committee. There must be no uncontrolled, no
attention to extraneous circumstances, no disregard of public policy, and things of that sort.”

Therefore, we can safely affirm that that in exercising its’ discretion, the planning authorities must have
regard to all relevant considerations, disregard all improper considerations and must produce a result,
which does not offend against common sense. The conditions imposed, to be valid must fairly and
reasonably relate to the permitted development. The planning authority cannot use its power for an
ulterior motive, however desirable that motive may seem to them to be in the public interest. A local
planning authority being a creature of statute possesses only such powers as may have been conferred on
it by the Parliament. Therefore, when a power vested in it is exceeded, any act done in excess of the
power is invalid as being ultra vires.80 Whenever the circumstances render it necessary, the Malaysian
courts do review the administrative authorities' function especially to prevent them from abusing their
discretionary powers. The Court in this case81 has exercised its inherent powers to review the decision of
the administrative authority when it is proven that they have exercised their discretionary powers beyond
the intent of the conferring statute. The TCPA 1976 confers wide scope for the exercise of discretion on
behalf of the local planning authority and the State Executive Committee on the basis of the prevailing
planning policy.

The land planning process in Malaysia requires flexibility owing to the development policy practised.
Therefore, it is difficult to adhere rigidly to the development plans. The term ‘other material
considerations’ provides the desired flexibility for the planning authorities. The approach that could be
adopted is to presume that developments will be permitted, particularly in generating economic activity
and in ensuring adequate supply of land for housing and other land development projects. The term ‘other
material considerations’ can also provide the basis for approving development activities even if it

79
[1979] 1 MLJ 135 (FC)
80
The judgment of Lord Greene MR. in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1
KB 223 at p.234 that to come to a conclusion so unreasonable that no reasonable authority could ever have come to
it, and he held the condition to be “utterly unreasonably and such as Parliament cannot possibly have intended was
followed.
81
Pengarah Tanah dan Galian Wilayah Persekutuan v Sri Lempah Enterprise Sdn. Bhd (1970) 1 MLJ 135.

22
contradicts the provisions of the development plan. Planning permission is only refused on specific
grounds depending on the view of the planning authorities as they have wide discretionary powers in
interpreting the term ‘other material conditions.’

VII. Conclusion

The TCPA 1976 provides that the State authorities are responsible for organising the local government
and municipal services and assume the position of “central government” to the local authority. The local
planning authority in Malaysia is the principal government agency, which exercises control at the local
level. Thus, this gives rise to lack of uniformity in the administration of town and country planning laws
in the states of Malaysia, despite the TCPA 1976 manifesting that it aims to promote uniformity in the
planning law applicable to the states.82 The planning authorities power and responsibility for carrying on
with the day-to-day administration of land use control is rather limited, while the State governments’ role
in the administration of planning is supervision and coordination of the manner in which those powers
and responsibilities are exercised. The State government, through the SPC was given a fair share of
responsibility. The functions of the SPC are clearly described in section 4 of the TCPA 1976. The State
Director as the principal advisor to the SPC is responsible for implementing the decisions and policies
made by the SPC.

The planning authorities in Malaysia need to move away from the command and control approach to that
of facilitating stakeholders’ participation to enhance the decision making process especially to promote
sustainable development as aspired in the Development plans that are prepared taking into account all the
relevant policies and needs of the people.

82
TCPA 1976 Preamble.

23