Andrew Harding, Centre for Asian Legal Studies, National University of Singapore
Relevance of the Practice
There are three inter-connected levels of decision-making concerning development coming within the Town and Country Planning Act 1976 (TCPA). State governments draw up structure plans; local authorities draw up local plans consistent therewith;[1] and local authorities decide on particular planning applications, which should also be consistent with the structure and local plans.[2] The issue considered here is, to what extent is public participation possible in the second of these stages, given the importance of development decisions to the public? The process for drawing up local plans is identical to that for drawing up structure plans, as far as public participation is concerned, and is prescribed in the TCPA and the Town and Country Planning (Structure and Local Plans) Rules 1985.[3] The structure plan forms the policy basis for development in the local authorities’ areas. The local authorities are also empowered to (and usually in practice do) prepare a more detailed local plan for their areas, or parts thereof.
The following case study of local government practice on local plans[4] relates to the drafting of the structure plan for the large, mainly middle-class Kuala Lumpur suburb of Petaling Jaya. Field-work on this case study was undertaken in the mid-1990s, but, revisiting the subject in 2007, the authors concluded that their findings were still valid.[5]
Description of the Practice
The process is governed by the TCPA, Section 9, which requires the state planning director, when preparing the draft structure plan, to take such steps as will in his opinion secure that publicity is given in the state to the report of the survey which he is required to conduct (under the TCPA 1976, Section 7), and to the matters that he proposes to include in the plan; and that persons who may be expected to desire an opportunity of making representations to him are made aware that they are entitled to, and are given, an opportunity of doing so. He is also required to consider every representation made within the prescribed period of one month. Further, as soon as practicable after the draft structure plan has been submitted to the planning committee, he is required to publish, in three issues of at least two local newspapers, one of which is in the national language (Malay), a notice stating that copies of the plan are available for inspection at his office and at such other places as he may determine and the time within which objections to the plan may be made to the committee.
As illustrated by the experience of the Petaling Jaya (PJ) residents’ associations during the process for drafting the PJ structure plan, the public-participation process leaves much to be desired. First, there is a lack of efficacious publicity. As we have seen, advertisements are placed in newspapers, but these are small and easily missed. Second, there is a shortage of time given to the public to prepare their objections and queries. In the PJ example, there were only 30 days to prepare. Furthermore, there was very little useful information about the plan that was provided for public scrutiny before a public meeting with the state government and Majlis Perbandaran Petaling Jaya (the local council). Thus it was difficult to participate constructively and in an informed manner. On the surface there does seem to be some effort by local authorities to ensure fair play. For example, the public is allowed to scrutinise any new development plans and there are public exhibitions whenever changes are to be made. However, these complex plans can only be viewed and not copied, making careful scrutiny extremely difficult. And there have been reports that the public exhibitions are ineffective because there is little cooperation by the officials there, who tend to be reticent in answering questions.
Assessment of the Practice
Although the TCPA and the rules made thereunder require public consultation, they are silent as to the extent to which the views of the public should be considered. It would appear that, although there is a right to object to a plan, there is no guarantee that input from the public will be absorbed into the final plan. This is the constant source of frustration in public participation exercises, which can appear to be a box-checking process rather than an exercise in democracy. At least, however, based on the Kiara Green case,[6] there must henceforth be evidence of genuine consideration of the view expressed by the public. Of course, the process cannot be bound by public inputs, which might in any case contradict each other, but the only protection against unreasonable rejection of public views, apart from litigation, is that the state planning director is obliged to state his consideration of the representations and the state planning committee is empowered under the TCPA to reject the plan and require further action to be taken. Give the knock-on effect of structure plans on local plans and planning decisions, any mistakes made at this stage will be binding on the other two processes, and cannot be corrected.
The suggestion here is that there are two keys to successful public participation. The first is freedom of information (this is not so much a problem in the case of plans, but as we have seen it is a problem elsewhere). The solution would be to pass freedom of information legislation applying to all public authorities and embodying an extensive right to receive information.[7] The second key is the giving of articulated reasons for decisions, which is also required by the Kiara Green decision. This principle is within the powers of the judiciary to enforce as a general principle of administrative law. From an urban-rural lens it is worth noting that the resources to use litigation as described above are confined to urban areas (e.g. NGOs, academics, the legal profession), and are in any case only now being developed and receiving judicial attention.
References to Scientific and Non-Scientific Publications
Harding A and Sharom A, ‘Access to Environmental Justice in Malaysia (Kuala Lumpur)’ in Andrew Harding (ed), Access to Environmental Justice: A Comparative Study (Kluwer 2007)
Mydin AJ, ‘Access to Public Participation in the Land Planning and Environmental Decision-Making Process in Malaysia’ (2011) 1 International Journal of Humanities and Social Science 148
[1] TCPA 1976, Sec 10.
[2] ibid. Sec 229(1).
[3] Made under the TCPA 1976, Secs 17, 58; and see Sec 9.
[4] Andrew Harding and Azmi Sharom, ‘Access to Environmental Justice in Malaysia (Kuala Lumpur)’ in Andrew Harding (ed), Access to Environmental Justice: A Comparative Study (Kluwer 2007).
[5] Ainul Jaria Mydin’s study published in 2011 also confirms the continued validity of the findings. See Ainul Jaria Mydin, ‘Access to Public Participation in the Land Planning and Environmental Decision-Making Process in Malaysia’ (2011) 1 International Journal of Humanities and Social Science 148.
[6] Perbadangan Pengurusan Trellises and others v Datuk Bandar Kuala Lumpur and others [2021] 2 CLJ 808. For more detail on the case, see the introduction to People’s Participation in Local Decision-Making in Malaysia, report section 6.1.
[7] Currently, there is no right to information in Malaysia, however, many are campaigning for such a right to be enshrined in statute law.