Lacuna in proposed new section of town planning act
SILENT: No provision in section to state effect of non-compliance of Town and Country Planning Act 1976 and action to be taken if council’s advice not heeded
AYEAR ago, in December, a senior official of the Penang administration said its RM27 billion Penang Transport Master Plan (PTMP) may go up in smoke if the proposed 1,619ha reclamation project fronting the island’s southern coast could not proceed as planned.
Penang state executive councillor in charge of local government, traffic management and flood mitigation, Chow Kon Yeow, told reporters that Penang did not have much land, and without reclamation, many of the PTMP projects could not take off. He added that the state government would have to re-examine its land bank and decide if there was any land available that could be swapped to finance these projects. Without funds, the RM6 billion light rail transit project may also have to be shelved.
Four months before that, on Sept 4 last year, then urban wellbeing, housing and local government minister Datuk Abdul Rahman Dahlan said the Penang government had not consulted the National Physical Planning Council (NPPC) about the reclamation project. He added that reclamation projects larger than 100ha or involving 10,000 people should be brought to the attention of the council.
On Oct 20, Penang executive councillor in charge of housing, town and country planning, Jagdeep Singh Deo, said “advice is not something mandatory”. He was commenting on the new Section 20B of the Town and Country Planning Act 1976 (Act 172) as proposed in the Town and Country Planning (Amendment) Bill 2016. The bill, tabled in the Dewan Rakyat for its first reading on Oct 17, has two primary objectives — to introduce a new provision (Section 20B) and to amend Section 21A.
The proposed Section 20B states in subsection (1) that “it shall be the duty of every Federal Government or state government department or agency to seek advice from the council” on a development proposal relating to any coastal reclamation (excluding reclamation for the construction of a jetty or beach rehabilitation) and the construction of a major infrastructure, such as airports, seaports, inland ports, railway transportation networks, highways, power stations, dams and toxic waste disposal sites.
It then states in subsection (2) that for the purpose of seeking advice from the council, the department or agency “shall submit to the council” the development proposal together with a social impact assessment report and other reports as determined by the council.
In addition, the bill also amends Section 21A of Act 172, which deals with the development proposal report (DPR). Under the existing law, a DPR must contain, inter alia, the development concept and justification, a local map and a site plan, a land use analysis and its effect on the adjoining land, layout plans and such other matters as prescribed by the local planning authority. The bill seeks to insert a new paragraph (ea) that requires the DPR to also contain “an analysis of and mitigation measures for the social impact and other impacts as determined by the local planning authority”.
Taking a closer look at the law (before and after the proposed amendment), the following points can be summarised:
UNDER the existing law, before any developer is allowed to undertake any “development” (as defined in Section 2 of Act 172), it must first submit a development proposal report (DPR) under Section 21A. That DPR must contain particulars as
prescribed in that section. The proposed new law (the bill) now adds another item to be included in the DPR — an analysis of, and mitigation measures for, the social impact of the proposed development.
UNDER the existing law, if the proposed development involves the construction of a new township or a major infrastructure or utility, the State Planning Committee “shall request” from the council its advice on the application submitted.
Under the new law (the bill), if the proposed development involves reclamation works, the relevant department or agency is under a “duty” to seek advice from the council, and to comply with that duty, it must (shall) submit the DPR together with the social impact report and other reports.
In simple language, there is a legal duty on the part of the relevant department or agency (federal or state) to seek the advice of the council if the proposed development involves reclamation works. To seek that advice, certain reports must be furnished, which now must include an analysis of, and mitigation measures for, the social impact of the project.
That much is clear and free of any doubt. The critical question that has not been answered is, what does the word “advice” mean? The term is not defined anywhere in Act 172 or in the bill.
There is also no provision stating the effect of non-compliance with
that advice. Can sanctions be applied against the defaulting party?
The online version of Black’s Law Dictionary states that “advice” means “view, opinion, the counsel given by lawyers to their clients, an opinion expressed as to wisdom of future conduct”. Another online dictionary portal states that “advice” means an opinion or recommendation offered as a guide to action, conduct, etc; a communication, especially from a distance, containing information; and, an official notification.
The impression we get from these is that the term “advice” does not have the same meaning as “to instruct or persuade”. Thus, while it is clear that if a proposed development involves land reclamation, the relevant department or agency (state or federal) is under a legal duty to get the advice of the council, the law does not state expressly that when “advice” has been given, it must be “complied” with completely, to the letter.
The law is also silent as to what action can be taken if the advice given by the council has not been followed. Must the council seek a court order to stop the development work if its advice is ignored? There seems to be a lacuna in the law.
sallehbuang@hotmail.com
The writer formerly served the AttorneyGeneral’s Chambers before he left for private practice, the corporate sector and then academia
The critical question that has not been answered is, what does the word ‘advice’ mean? The term is not defined anywhere in Act 172 or in the bill.