1

Legislative intervention in promoting sustainable Housing Development in

Malaysia.

Introduction

Sustainable development 1.is most commonly defined as “development that meets the

needs of the present without compromising the ability of future generations to meet their

own needs.”2. In short tautology, it means ‘development that is sustainable.’

Sustainable housing, as you might expect, is generally used to describe the process as

it applies to the housing industry, in short, less waste, more re-use and recycling,

together with lower life-cycle environmental impacts and costs, better reliability, less

maintenance, and greater user satisfaction.

An economic role – contributing to building a strong, responsive and competitive

economy, by ensuring that sufficient land of the right type is available in the right places

and at the right time to support growth and innovation; and by identifying and

coordinating development requirements, including the provision of infrastructure;

An environmental role – contributing to protecting and enhancing our natural, built and

historic environment; and, as part of this, helping to improve biodiversity, use natural

resources prudently, reduce pollution, and mitigate and adapt to climate change

including moving to a low carbon economy; and

Social role – supporting strong, vibrant and healthy communities, by providing the

supply of housing required to meet the needs of present and future generations; and by

creating a high quality built environment, with accessible local services that reflect the

community’s needs and support its health, social and cultural well-being;

Development can be defined as a collective process of change toward improvements in

quality of life for human beings and their communities, and sustainability can be seen to

refer to the need for development to be integrated, socially, economically and

environmentally sound, oriented to the long-term, and hence, able to last. For the

CISDL, the concept of sustainable development, in international law, requires

accommodation, reconciliation and integration between economic growth, social justice

(including human rights) and environmental protection objectives, towards participatory

improvement in collective quality of life for the benefit of both present and future

generations3

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‘Sustainable Development Law’

The term ‘sustainable development law’ describes an emerging corpus of international

legal principles and instruments which address the intersections between international

economic, environmental and social law (including human rights law), towards

development that can last for the present and future generation

The Declaration on the Right to Development adopted by the UN in 1986 and the

Second UN World Conference on Human Rights in 1993 declared and reaffirmed that

the right to development is a universal and inalienable right and an integral part of

fundamental human rights (Sengupta, 2001)

'Right To Life'.

Is right to adequate housing and environment covered under Article 5 of

Constitution of Malaysia?.

Under fundamental rights in the Constitution of Malaysia, Article 5 entitled 'protection of

life and personal liberty' states: 'no person shall be deprived of his life or personal liberty

except according to procedure established by law' This has popularly come to be

known as Article on 'right to life'.

Over the years as new problems of citizens' rights and welfare and the role of the State

came up before the judiciary, the scope of the right to life has been expanded

considerably. In india where there is a similar provision relating to Right to Life under

Article 21,the 'Supreme Court breathed life' into the words of Article 21 (personal life

and liberty) as 'life with human dignity, with all faculties intact' (Venugopal, 2003). In

course of time this concept has been expanded to include several other vital aspects of

human life like 'pollution free water and air for full enjoyment of life', health,

environment, housing etc.

As early as in 1984 (in Bandhua Mukti Morcha vs. Union of India case)4, the Supreme

Court developed the concept of right to 'healthy environment' as part of the 'right to life'

under Article 21. The Court, in a recent judgement (1 December 2000), had observed

that 'in today's emerging jurisprudence, environmental rights which encompass a group

of collective rights are described as "third generation" rights'.6 The rights found in the

International Convention on Civil and Political Rights and International Covenant on

Economic, Social and Cultural Rights are considered as the 'first generation' and

'second generation' rights respectively.

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AWANG @ HARUN ISMAIL & 6 ORS v. KERAJAAN NEGERI KEDAH & 5 ORS [2010]

1 LNS 15 ZAMANI A RAHIM J

“The Plaintiffs have also shown some evidence of water from the river Badong and

Singkir as being polluted with suspended solids,.. and that their lives have been

impacted by the air pollution from the blasting operations at the quarry. The right to a

reasonably healthy and pollution free environment and the right to livelihood… are

fundamental constitutional rights (see Tan Tek Seng v. Suruhanjaya Perkhidmatan

Pendidikan & Anor 7[1996] 2 CLJ 771; [1996] 1 MLJ 261 at pages 288 and 289.

In deciding whether State action has an impact on fundamental liberties the test is

whether such action "directly affects" or that "it is an inevitable effect or consequence"

on the fundamental right such as to make its exercise ineffective or illusory. Although

citizens may be deprived of such rights this may only be so in accordance with

procedure prescribed by law (Article 5)of the Federal Constitution). Where a procedure

is unfair it is liable to be struck down.

Furthermore, the illegality in the present case is clear: Section 22(4) of the Town and

Country Planning Act, clearly means that no development should be carried out if it

contravenes the Structure Plan. In the present case, over and above section 22(4), the

Structure Plan itself was gazetted and thus has the force of law. The excerpts from the

Structure Plan stated above clearly show that Gunung Jerai Forest Reserve and Sungai

Singkir is to be maintained. How can the Defendants justify the approval, existence and

operation of a quarry on the very site the Structure Plan states is to be protected?

If the state is unable to produce material to justify its action as fair and reasonable, the

burden on the person alleging arbitrariness must be held to be discharged.”

Does the state authority has an unfettered discretion in imposing

conditions relating to development

In Malaysia the development process involves the surrender and re-alienation back of

land

Power to approve surrender and re-alienation. (Section 204B National Land

Code)

The State Authority may approve the surrender of any one or more contiguous alienated

lands held under final title or qualified title or a combination thereof held by the same

proprietor on the terms that certain portions of the land comprised therein be

immediately re-alienated to the proprietor in different portions and units or in different

units.

In approving the surrender and realizations the state Authority has acted purportedly

under section 124 of the National Land Code.

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The relevant parts of section 124 read;

1. Power of State Authority to vary conditions, etc.on application of proprietor.

(1) The proprietor of any alienated land may apply to the State

Authority under this section for –

(a) the alteration of any category of land use to which the

land is for the time being subject ...

(2) Where the State Authority approves any application under

paragraph (a) of sub-section (1), -

(a) it shall direct that the category of land used specified in

the application be endorsed on the document of title to the

land, and the existing category (if any) deleted, and…

(3) Any direction given by the State Authority under this

section may be made conditional upon all or any of the following matters-

(a) the payment of a further premium;

(aa) the payment of any other charges as may be prescribed;

(b) the reservation of a new rent;

(c) compliance with such other requirements as the State

Authority may think fit. [Emphasis added]

2. When we say that applicants have to “comply with such other requirements as

the State Authority may think fit”, does it mean that the State Authority can

impose “any condition it deem fit” making the discretion vested with the State

Authority an absolute and unfettered one, thus allowing the State Authority to

impose even conditions relating to sustainable development ?

MP Jain in "Administrative Law of Malaysia & Singapore" (1980) at p. 289 said:

“That many a time the statutes confer power but do not mention the considerations for

its exercise. Even in such a case, the authority can take into account only such

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considerations as may be relevant to the purpose for which the power has been

conferred. If the authority takes into account certain circumstances or considerations

which are irrelevant or extraneous to the purpose or the tenor of the statute in question,

then its act will be invalid even if the authority in question has acted in good faith. A

converse proposition is also applicable, viz, if the authority concerned does not take into

account, or ignores, considerations which are relevant to the purpose of the statute in

question, then again its act will be invalid. It is the function of the courts to assess

whether the authority has taken into account any irrelevant considerations, or ignored

any relevant considerations, in making an order in the exercise of its discretion.

Interpretation of statute is a judicial function. Therefore, the courts can see whether

administrative power conferred by an Act has been exercised for relevant or irrelevant

reasons.”

Wade & Bradley on "Constitutional and Administrative Law" 10th edn, at p. 632

states that:

“Powers vested in a public authority must be exercised in accordance with the intention

of Parliament as may be inferred from the Act in question. In a 19th century case, local

justices were held not to have exercised their discretion lawfully when they refused to

order a parish to meet certain poor law expenses on the ground that the operation of the

Act of Parliament was unjust. In 1972, the Birmingham licensing planning committee

was held to have taken extraneous considerations into account when it required a hotel

company to make payment to brewery companies as a condition of the company

receiving a license for a new hotel”

De Smith's Judicial Review, 6th Edition at p. 479 concisely sums up the law thus:

"A decision-making body exercising public functions which is entrusted with discretion

must not, by the adoption of a fixed rule or policy, disable itself from exercising its

discretion in individual cases. It may not "fetter" its discretion.

Lord Greene M.R in Associated Provincial Pictures Houses, Ltd v Wednesbury

Corporation [1947] 2 All ER

680 at p. 682 - 683 said:

"The exercise of such discretion must be a real exercise of the discretion For instance; a

person entrusted with discretion must direct himself properly in law. He must call his

attention to the matters which he is bound to consider. He must exclude from his

consideration matters which are irrelevant to the matter that he has to consider".

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PENGARAH TANAH DAN GALIAN, WILAYAH PERSEKUTUAN [v SRI LEMPAH

ENTERPRISE SDN BHD [1979] 1 MLJ 135 FC

This is a landmark case where powers of the state authority under section 124(5)(c)

was reviewed by the highest court and in concluding said that :

1. The approving authority does not have an uncontrolled discretion to impose

whatever conditions it likes.

2. The conditions, to be valid, must fairly and reasonably relate to

the permitted development.

3. The approving authority must act reasonably and planning

conditions must be reasonable.

4. The approving authority is not at liberty to use its power for an

ulterior object, however desirable that object may seem to it in the

public interest.

SUFFIAN LP

“Applying these principles to the present case, it is plain, in my judgment, that the

Committee does not have the power it claims to have. The condition which the applicant

objected to does not relate to the permitted development, is unreasonable, and is used

for an ulterior object, the object being to bring developed land into line with newly

alienated land as to which, we are told, since the war only leases, not titles in perpetuity,

are granted. However desirable this object may seem to the Committee, it has no power

under the law to achieve it in the way used here.”

RAJA AZLAN SHAH AG CJ (MALAYA):

“Every legal power must have legal limits, otherwise there is dictatorship. In particular, it

is a stringent requirement that a discretion should be exercised for a proper purpose,

and that it should not be exercised unreasonably. In other words, every discretion

cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of

the courts to intervene. The courts are the only defence of the liberty of the subject

against departmental aggression”

It is apparent from the above pronouncement by the learned judges that every legal

power has its legal limits and within those legal limits the discretion the must be

exercise in order to support sustainable housing development. Now let’s look at some

planning legislations

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Proper Town Planning as a means of ensuring sustainable development

TOWN AND COUNTRY PLANNING ACT 1976 (Act 172)

This an Act for the proper control and regulation of town and country planning in

Peninsular Malaysia .Under the Act “development” means 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; and “develop” shall be construed

accordingly” Section 2

National Physical Planning Council

The Act provides for the setting up of the National Physical Planning Council, At the

heart of the National Planning Policy Framework is a presumption in favour of

sustainable development, which should be seen as a golden thread running through

both plan-making and decision-taking

The functions of the National Physical Planning Council shall be—

(a) to promote in the country, within the framework of the national policy, town and

country planning as an effective and efficient instrument for the improvement of

the physical environment and towards the achievement of sustainable

development in the country;

(b) to advise the Federal Government or the Government of any State, on matters

relating to the town and country planning required under this Act; and

(c) to perform any other functions conferred upon the Council under this Act. (3) The

Council may from time to time give the Director General of Town and Country

Planning directions which are consistent with the provisions of this Act, and the

Director General of Town and Country Planning shall give effect to such

directions.

(d) The Council may perform any other functions that are incidental or consequential

to any of the functions specified in subsection and do all such things as may be

necessary or expedient for carrying out its functions under this Act. Section 2A.

(2)

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General planning policy

The State Authority shall be responsible for 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 the State; and the State Authority may, in or for the purpose of discharging

the responsibility of the State Authority under this section, from time to time give to the

Committee or any local planning authority directions of a general character not

inconsistent with the provision of this Act, and the Committee or local planning authority

shall give effect to such directions.

(4) The functions of the Committee shall be—

(a) to promote in the State, within the framework of the national policy, the

conservation, use and development of all lands in the State;

(aa) to regulate, control, plan and co-ordinate all development activities in the State;

(b) to advise the State Government, either on its own initiative or in response to a

request by the State Government, on matters relating to the conservation, use

and development of land in the State; and

(c) to undertake, assist in and encourage the collection, maintenance and

publication of statistics, bulletins and monographs and other publications relating

to town and country planning and its methodology.

Local planning authorities

Functions of local planning authorities

6. (1) The functions of a local planning authority shall be—

(a) to regulate, control and plan the development and use of all lands and

buildings within its area;

(b) to undertake, assist in, and encourage the collection, maintenance, and

publication of statistics, bulletins, and monographs, and other publications

relating to town and country planning and its methodology; and

(c) to perform such other functions as the State Authority or the Committee

may from time to time assign to it.

Prohibition of development without planning permission

No person, other than a local authority, shall commence, undertake, or carry out any

development unless planning permission in respect of the development has been

granted to him under section 22 or extended under subsection 24(3).

(2) Notwithstanding subsection (1), no planning permission shall be necessary—

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(a) for the carrying out of such works as are necessary for the maintenance,

improvement, or other alteration of a building, being works that affect only the

interior of the building and do not—

(i) involve any change in the use of the building or the land to which it is attached;

(ii) materially affect the external appearance of the building;

(iii) involve any increase in the height or floor area of the building;

(iv) involve any addition to or alteration of a building that affects or is likely to affect

its drainage, sanitary arrangements, or its soundness; or

(v) contravene or involve or result in any inconsistency with any provision in the local

plan;

(b) for the carrying out by any authority established by law to provide utilities of any

works for the purpose of laying, inspecting, repairing, or renewing any drains,

sewers, mains, pipes, cables, or other apparatus, or for the purpose of

maintaining or repairing roads, including the breaking open of any road or ground

for those purposes;

(c) for any excavation, including excavation of or for wells, made in the ordinary

course of agricultural operations in areas zoned for agriculture;

(d) for the use of any land or building for a period not exceeding one month or such

further period as the local planning authority may allow for purposes of—

(i) a temporary or mobile cinema, theatre, or show;

(ii) a temporary amusement park, fair, or exhibition; or

(iii) a temporary ceremony or festivity of a religious, social, or other character,

and for any development necessary to give effect to such use;

(e) for the construction or erection on any land of temporary buildings for the

accommodation of workers involved in the construction or erection of a building

on the land, for which planning permission has been granted;

(f) for the use of any land or building within the curtilage of a dwelling-house for any

purpose incidental to the enjoyment of the dwelling-house as such; or

(g) for the making of such material change in the use of land or building as the State

Authority may prescribe to be a material change for which no planning

permission is necessary. (Section 19.)

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Prohibition of development contrary to planning permission

No person shall commence, undertake, or carry out any development otherwise than in

conformity with the planning permission granted to him under section 22 in respect of

the development or with the conditions of the planning permission. (Section 20.)

Development Proposal Report

(1) In addition to the documents and plans required to be submitted under

subsection 21(1) for planning permission, the applicant shall submit a

development proposal report which shall contain the following:

(a) the development concept and justification;

(b) a location map and a site plan;

(c) particulars of land ownership and restrictions, if any;

(d) (i) a description of the land including its physical environment, topography,

landscape, geology, contours, drainage, water bodies and catchments and

natural features thereon;

(ii) a survey of the trees and all forms of vegetation; and

(iii) particulars of a building, which may be affected by the development;

(e) a land use analysis and its effect on the adjoining land;

(f) layout plans, the details of which are specified in section 21B; and

(g) such other matters as may be prescribed by the local planning authority.

(1A) The State Authority may specify that the development proposal report

submitted under subsection (1) in respect of certain categories of development

shall include an analysis of the social implications of the development for the

area which is the subject of the application for planning permission. (section

21A.)

22(5) Conditions imposed under subsection (3) may include any or all of the following

conditions, that is to say, conditions—

(a) to the effect that planning permission granted in respect of any change of use of

land or building is only for a limited period and that, after the expiry of that period,

the use of the land or building as authorized by the planning permission shall

cease and the land or building shall be reverted to its original use;

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(b) to regulate—

(i) the development and use of any other land under the control of the

applicant that adjoins the land in respect of which the planning permission

is granted; and

(ii) as may appear to the local planning authority to be expedient for the

development for which planning permission is granted, the works that may

be carried out on such other land and the manner in which and the extent

to which such works may be carried out;

(c) for securing the development of the land in accordance with the approved layout

plans;

(d) prohibiting damage to the land, its physical environment, natural topography and

landscape;

(e) prohibiting the removal or alteration of any of the natural features of the land;

(f) prohibiting the felling of trees of a certain size, age, type or species at any

particular location, unless it is to comply with any written law;

(g) for securing the planting or replanting of trees of a certain size, age, type or

species at any particular location in such manner as may be determined by the

local planning authority;

(h) for securing the making up of open spaces in accordance with the approved

layout plans;

(i) where the development involves the erection of a new building, or the re-erection

or extension of a building or part thereof, conditions to ensure its compatibility

with the architecture, character or appearance depicted in the buildings located in

the surrounding area, which the local planning authority intends to protect,

preserve or enhance;

(j) where the development involves any addition or alteration to an existing building

with special architecture or historical interest, conditions to ensure that the

facade and other external character of the building is retained; and

(k) where the development involves the re-erection of a building with special

architecture or historical interest or the demolition thereof and the erection of a

new building in its place, conditions to ensure that the facade and other external

character of the demolished building is retained.

(l) It shall be the duty of the local planning authority to ensure where planning

permission is granted that a tree preservation order, if any, is complied with.

(m) If planning permission is granted, whether with or without conditions, it shall

conveyed to the applicant in the prescribed form and at the same time a notice of

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the grant thereof shall be given to any person who has made any objection

pursuant to subsection 21(6).

Offences relating to unauthorized development

(1) A person who, whether at his own instance or at the instance of another

person— (a) uses or permits to be used any land or building in contravention of

section 18; (b) commences, undertakes, or carries out, or permits to be

commenced, undertaken, or carried out, any development in contravention of

section 19 or 20;

(a) commences, undertakes, or carries out, or permits to be commenced,

undertaken, or carried out, any development where the planning permission or

the approval of the building plan, as the case may be, in respect of the

development has been revoked pursuant to section 25; or

(b) commences, undertakes, or carries out, or permits to be commenced,

undertaken, or carried out, any development after the planning permission or the

approval of the building plan, as the case may be, in respect of the development

has been modified pursuant to section 25 and the development so commenced,

undertaken, or carried out is inconsistent with the modified permission or

approval, commits an offence and is liable, on conviction, to a fine not exceeding

*five hundred thousand ringgit or to imprisonment for a term not exceeding two

years or to both and, in the case of a continuing offence, to a further fine which

may extend to **five thousand ringgit for each day during which the offence

continues after the first conviction for the offence. (Section 26)

TREE PRESERVATION ORDER

Tree preservation order under Section 35A.

(1) If it appears to the local planning authority that it is expedient in the interest of

amenity to preserve any tree, trees or group of trees in its area, it may make a

tree preservation order with respect to such tree, trees, or group of trees.

(2) A tree preservation order may, in particular, make provisions—

(a) for prohibiting the felling of trees except with the written permission of and

subject to conditions, if any, imposed by the local planning authority; and

(b) for securing the planting of trees or the replacement of trees by replanting in such

manner as may be determined by the local planning authority.

(3) Paragraph (2)(a) shall not apply to the felling of a tree—

(a) which is dying or dead;

(b) for the prevention of an imminent danger; or

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(c) if it is to comply with any written law.

(4) Any person who contravenes any provision in the tree preservation order

commits an offence and is liable, on conviction, to a fine not exceeding one

hundred thousand ringgit or to imprisonment for a term not exceeding six months

or to both.

(5) Where in any proceeding for an offence under this section it is proved that a tree

was felled, it shall be presumed, until the contrary is proved, that the tree had

been felled by the occupier of the land on which the tree was growing.

Compensation under a tree preservation order under Section 35D

6. (1) If the owner of the land to which a tree preservation order relates proves that

he has, in complying with paragraphs 35C(1)(a) to (d), suffered damages in the

form of depreciation in the value of the land, he may claim compensation from

the local planning authority

Replacement of trees under Section 35E.

(1) It shall be the duty of the person who is found guilty under subsection 35A(4) for

felling any tree in respect of which a tree preservation order is for the time being

in force, in contravention of the tree preservation order, to replace such tree by

planting another tree—

(a) of an appropriate size and species;

(b) at or near the same place or such other place;

(c) within the time; and

(d) subject to such terms and conditions, as may be specified by the local planning

authority unless on his application or the application of any other person or at its

own discretion the local planning authority dispenses with this requirement.

Prohibition to fell, etc., tree with girth exceeding 0.8 metre under Section 35H.

(1) No person shall, without the written permission of the local planning authority, fell

a tree with a girth exceeding 0.8 metre which is not subjected to a tree

preservation order unless the felling—

(a) is in respect of such tree which is dying or dead;

(b) is for the prevention of an imminent danger; or

(c) is to comply with any written law.

(2) For the purpose of subsection (1), the girth of a tree shall be measured half a

metre from the ground provided that the girth of a tree with buttress shall be

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measured above the buttress. (3) Any person who contravenes subsection (1)

commits an offence and is liable, on conviction, to a fine not exceeding *ten

thousand ringgit or to imprisonment for a term not exceeding three months or to

both.

STREET, DRAINAGE AND BUILDING ACT 1974 (Act 133)

It is an Act to amend and consolidate the laws relating to street, drainage

and building in local authority areas in Peninsular Malaysia.

Notice of new buildings.

(1) No person shall erect any building without the prior written permission of the

local authority.

(2) Any person who intends to erect any building shall cause to be submitted by a

principal submitting person or submitting person-

(a) to the local authority such plans and specifications as may be required by any by-

law made under this Act; and

(b) to the relevant statutory authority such plans and specifications as may be

required by any other written law.

Earthworks.

(1) No person shall commence or carry out or permit to be commenced or carried

out any earthworks without having first submitted to the local authority plans and

specifications in respect of the earthworks and obtained the approval of the local

authority thereto.

(2) Where the earthworks are to be commenced or carried out for the purpose of the

construction of any building, street, drain, sewer, or embankment, or for the

laying of any cable or pipe, or for the purpose of any other construction or work

whatsoever, the plans and specifications relating to such construction or work

required to be submitted under this Act or any by-laws made thereunder shall be

submitted to the local authority at the same time as the plans and specifications

in respect of the earthworks.

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(3) In granting the approval under subsection (1) the local authority may impose

such conditions as it deems fit.

(4) The local authority may, where it certifies that the safety of life or property is

affected or is likely to be affected by any earthworks, order the immediate

cessation of the whole or any part of the earthworks; the certificate of the local

authority under this subsection shall be conclusive proof of the matters stated

therein and shall not be questioned or be subject to any appeal or review in any

court.

(5) The provisions of this section shall not apply to earthworks commenced or

carried out by or on behalf of the Government of Malaysia or a State

Government.

(6) The local authority or any person authorised by it or on its behalf shall not be

subject to any action, claim, liabilities or demand whatsoever arising out of the

exercise of any of the powers conferred on the local authority under this section

or under any by-laws made thereunder.

(7) The local authority may make by-laws –

(a) in respect of earthworks;(b) to provide for plans and specifications in respect of

earthworks;

(b) the submission of plans, specifications, particulars, documents and reports

relating to earthworks, the submitting persons and their duties and

responsibilities, and the form and nature or classification of such plans,

specifications, particulars, documents and reports and the fees therefor;(d) to

provide for the punishment for offences under the by-laws made under this

section not exceeding a fine of two thousand ringgit and, in the case of a

continuing offence, not exceeding a fine of one hundred ringgit for each day the

offence is continued;(e) to provide for exemption from all or any of the provisions

of this section in respect of earthworks of a minor or temporary character; and

(8) In this section and in any by-laws made thereunder the word "earthworks"

includes any act of excavation, leveling, filling with any material, piling, the

construction of foundations, or felling of trees, on any land, or any other act of

dealing with or disturbing any land.

Penalty for failure of building or earthworks.(Section 71)

Where any building or part of a building fails, whether in the course of construction or

after completion, or where there is any failure in relation to any earthworks or part of any

earthworks, whether in the course of the carrying out of the earthworks or after

completion thereof, and the cause of such failure is due to any one or more of the

following factors –

(a) misconstruction or lack of proper supervision during construction;

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(b) misdesign or miscalculation; or(c) misuse of such building or part of such

building, or of such earthworks or part of such earthworks, the person

responsible for -(aa) such misconstruction or such lack of proper supervision;(bb)

such misdesign or miscalculation; or(cc) such misuse, shall be liable on

conviction to a fine not exceeding five hundred thousand ringgit or to

imprisonment for a term not exceeding ten years or to both.

Rights of owners of adjoining premises.

(1) If it appears to the local authority on receipt of any such application that the

owner of any adjoining premises should be consulted the local authority shall

serve upon such owner notice of the application informing him to make

representations to the local authority within a specified period.

(2) The local authority shall take into consideration the representation of any owners

of adjoining premises and where the local authority decides to allow modification

or waiver against the representations of any such owner, it shall submit its

decision to the State Authority.

(3) Unless the decision of the local authority is reversed or modified by the State

Authority within thirty 86. Nuisances liable to be dealt with summarily under this

Act.

For the purposes of sections 87, 88, 89 and 90 -(a) any premises or part thereof

of such a construction or in such a state as to be a nuisance or injurious or

dangerous to health;

(a) any pool, gutter, water-course, cistern, water closet, water sealed latrine, privy,

urinal, septic tank, sewer or drain so foul or in such a state or so situate as to be

a nuisance or injurious or dangerous to health;

(b) any building which -

(i) is not kept in a clean state and free from effluvia arising from any sewer, drain,

privy, water sealed latrine, septic tank, urinal or other nuisance; or

(ii) is not ventilated in such a manner as to render harmless as far as practicable any

gases, vapours, dust or other impurities generated in the course of the work

carried on therein that are a nuisance or injurious or dangerous to health;

(c) any huts or sheds, whether used as dwellings or as stables or for any other

purpose, which are by reason of the manner in which the huts or sheds are

crowded together or the want of drainage or the impracticability of scavenging or

for any other reason a nuisance or injurious or dangerous to health;

(d) any brick-field, sandpit or any other kind of excavation which is injurious to health

or offensive to the neighbourhood or used for any purpose likely to be injurious to

17

health;shall be a nuisance liable to be dealt with summarily in accordance with

sections 87, 88, 89 and 90.days of its submission, the decision of the local

authority shall be deemed to be confirmed.

Uniform Building BY-Law

By-laws.

The State Authority shall have the power to make by-laws for or in respect of every

purpose which is deemed by him necessary for carrying out the provisions of this Act,

and for prescribing any matter which is authorised or required under this Act to be

prescribed, and in particular and without prejudice to the generality of the foregoing for

in respect of all or any of the matters specified hereunder -

(i) the laying or carrying of any line of rails, mains, pipes, conduits or electric lines

(other than sewers) along, through, across, over or under any street or any place

laid out or intended for a street;

(ii) the granting of licences for the carrying and maintenance of telegraphic wires or

cables or wires for the conveyance of electricity along or across or under public

streets and the fixing and levying of annual or other fees therefor;

(iii) the level, width and construction of streets and the repairing, cleaning, watering

and lighting of streets, roads, canals and bridges and the planting and

preservation of trees;

(iv) the supervision and control of back-lanes under the control of the local authority,

of public streets and of streets laid out or constructed by the local authority, the

licensing of persons to use such streets and backlanes for any purpose or in any

particular manner other than in the exercise of any right of way thereover;

(v) the construction, paving, width and level of arcades and footways;

(vi) the construction, maintenance and repair in any building or on any premises of a

water supply, sanitary accommodation, sink accommodation, bathing and

washing accommodation;

(viii) the maintenance and repair of ash pits, dust-bins and like receptacles;

(ix) the provision, construction, maintenance and repair of wells, tanks and cisterns;

(x) the prevention, removal and suppression of obstructions or encroachments in or

on back-lanes, public streets, private streets and arcades abutting thereon and

18

the provision, construction, dimensions and paving along any portion of any land

alongside such streets;

(xi) the closing, fencing, lighting and repair of any works, hole or place likely to be a

danger to the public;

(xii) the construction, alteration and demolition of buildings and the methods and

materials to be used in connection therewith;

(xii a) the submission of plans, specification, calculations, particulars, documents and

reports relating to erection of building, principal submitting persons and

submitting persons and their duties and responsibilities, and the form and the

nature or qualification of such plans, calculations, particulars, documents and

reports;

(xii b) the manner and procedure for making an application for the approval for plans

and specification for the erection of building;

(xii c) the planning, design and erection of building including -

(a) the structural strength of the building;

(b) the stability of the building;

(c) precautions against overloading;

(d) measures to safeguard the adjacent buildings; and

(e) underpinning;

(xii d) the provision of embankments and retaining walls;

(xii e) the submission of particular of qualified persons, contractors, skilled construction

workers and constructions site supervisors engaged or employed for the purpose

of or in the erection of building;

(xii f) the prescribing of documents, books or records to be kept and reports or

certificates to be made or issued under this Act;

(xii g) the time, manner and procedure for the issuance of the certificate of completion

and compliance and partial certificate of completion and compliance;

(xii h) the manner and procedure for the sampling of building materials;

(xii i) the manner for carrying out periodical inspection of buildings and the form in

which the reports required in relation thereto shall be submitted;

(xiii) the frontage of, air space about, lighting, airconditioning, ventilation, height of and

approaches and entrances to, the provision of parking places for vehicles in or

for and exits from buildings;

19

(xiv) the minimum timber or other building material content in any building;

(xv) the dimensions of rooms, cubicles, staircases and other parts of buildings and

the provision of light and air thereto;

(xvi) the provision for the paving, width and level of arcades and footways;

(xvii) the provision in any building or on any premises of a water supply, sanitary

accommodation, sink accommodation, bathing and washing accommodation;

(xviii) the provision, construction, maintenance and repair of drains;

(xix) the provision of ash pits, dustbins and like receptacles;

(xx) the prescribing of forms for licences and other purposes for use in connection

with this Act;

(xxi) securing the prevention and the prevention of the spread and extinguishment of

fire;

Such by-laws may include -

(a) provisions for building materials to be fire resisting and for the fire resistance

grading of such materials;

(b) provisions regarding methods of construction and design of any building to

secure its safety from fire;

(c) provisions for means of escape from any premises in the event of fire and for the

maintenance of such means of escape;

(d) provisions for fire stops and fire breaks;

(e) provisions with regard to access to premises for the fire brigade in the event of

fire, and include means of access within a building for fire-fighting purposes;

(f) provisions for the ventilation of buildings for the purpose of removing gases and

smoke that may be caused by a fire;

(g) provisions for fire-fighting equipment both manual and automatic and of fire

detectors and fire alarms and their maintenance;

(h) provisions for an adequate supply of water for fire-fighting purposes;

(i) any other measures for the safety of fires and the prevention and spread of fire;

(xxii) to require the owner or occupier of premises, or any other person having a duty

under this Act or any by-law made, thereunder, to execute any work or perform

any act necessary in the opinion of the local authority to secure compliance with

such Act or by-laws and in default of compliance with such requirement on the

part of such owner or occupier or other person, to authorise the local authority to

20

execute such work or perform such act itself and to recover the expenses and

costs incurred by it in or about the execution of such work or the performance of

any such act, from such owner, occupier or other person, as the case may be;

(xxiii) in case of emergency or where the owner cannot after due enquiry be found, to

authorise the local authority to execute such work or perform such act itself

without first requiring the owner, occupier or other person as aforesaid to do so,

and to recover the expenses and costs incurred by it in or about the execution of

such work or the performance of such act from such owner, occupier or other

person;

(xxiv) to apportion responsibility for failure to any building or parts of a building and to

require any person or class of persons to report such failures and to explain the

causes of such failure;

(xxv) the payments to be made for, and other incidents of, licences and permits issued

under this Act;

(xxvi) the fees, costs and other sums charged for any matter or thing required or

authorised to be done under this Act;

(xxvii) the collection, remission, rebate or deferment of payment of any sum required to

be paid under this Act;

(xxviii) the offences under this Act and any by-laws made thereunder which may be

compounded by the local authority, the persons who may compound, the limit of

the sum of money to be collected by such local authority for compounding such

offences and the procedure and forms to be complied with in compounding; and

(xxix) in so far they do not fall within any of the preceding paragraphs, all procedural

and other matters which by this Act are required or permitted to be prescribed, or

which are necessary or convenient to be prescribed for carrying out or giving

effect to the provisions of this Act.

When is Report on impact on environment required in relation to housing .?

ENVIRONMENTAL QUALITY ACT 1974

Report on impact on environment resulting from prescribed activities

(l) The Minister, after consultation with the Council, may by order prescribe any

activity which may have significant environmental impact as prescribed activity

(2) Any person intending to carry out any of the prescribed activities shall, before

any approval for the carrying out of such activity is granted by the relevant

approving authority, submit a report to the Director General. The report shall be

in accordance with the guidelines prescribed by the Director General and shall

21

contain an assessment of the impact such activity will have or is likely to have on

the environment and the proposed measures that shall be undertaken to prevent,

reduce or control the adverse impact on the environment.

(3) If the Director General on examining the report and after making such inquiries

as he considers necessary, is of the opinion that the report satisfies the

requirements of subsection (2) and that the measures to be undertaken to

prevent, reduce or control the adverse impact on the environment are adequate,

he shall approve the report, with or without conditions attached thereto, and shall

inform the person intending to carry out the prescribed activity and the relevant

approving authorities accordingly.

(4) If the Director General, on examining the report and after making such inquires

as he considers necessary, is of the opinion that the report does not satisfy the

requirements of subsection (2) or that the measures to be undertaken to pre-

vent, reduce or control the adverse impact on the environment are inadequate,

he shall not approve the report and shall give his reasons therefor and shall

inform the person intending to carry out the prescribed activity and the relevant

approving authorities accordingly: Provided that where such report is not

approved it shall not preclude such person from revising and resubmitting the

revised report to the Director General for his approval.

(5) The Director General may if he considers it necessary require more than one

report to be submitted to him for his approval.

(6) Any person intending to carry out a prescribed activity shall not carry out such

activity until the report required under this section to be submitted to the Director

General has been submitted and approved,

(7) If the Director General approves the report, the person carrying out the

prescribed activity, in the course of carrying out such activity, shall provide

sufficient proof that the conditions attached to the report (if any) are being

complied with and that the proposed measures to be taken to prevent, reduce or

control the adverse impact on the environment are being incorporated into the

design, construction and operation of the prescribed activity.

(8) Any person who contravenes this section shall be guilty of an offence and shall

be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a

period not exceeding two years or to both and to a further fine of one thousand

ringgit for every day that the offence is continued after a notice by the Director

General requiring him to comply with the act specified therein has been served

upon him.

22

ENVIRONMENTAL QUALITY (PRESCRIBED ACTIVITIES) (ENVIRONMENTAL

IMPACT ASSESSMENT) ORDER, 1987

In exercise of the powers conferred by section 34A of the Environmental Quality Act,

1974, the Minister, after consultation with the Environmental Quality Council, makes the

following order: 1. Citation and commencement. This Order may be cited as the

Environmental Quality (Prescribed Activities) (Environmental Impact Assessment)

Order, 1987 and shall come into force on the 1st April 1988. 2. Prescribed activities.

The activities specified in the Schedule are prescribed to be prescribed activities.. 7.

HOUSING: Housing development covering an area of 50 hectares or more.

WONG KIN HOONG & ORS v. KETUA PENGARAH JABATAN ALAM SEKITAR &

ANOR HIGH COURT MALAYA, KUALA LUMPUR [2011] 7 CLJ 1005 LAU BEE LAN

J

The letter of 21 February 2008 to the applicants by the first respondent was not a

decision capable of judicial review. It was merely informatory in nature and did not in

itself amount to a 'new decision'. It merely notified the applicants that an EIA report had

been approved on 13 January 1997. Accordingly, there was no further decision to make

as a decision had already been made 11 years ago. (paras 1 & 18)

PENDOR BANGER & ORS v. KETUA PENGARAH JABATAN ALAM SEKITAR &

ORS HIGH COURT MALAYA, KUALA LUMPURMOHD ZAWAWI SALLEH J [2011] 1

LNS 788

"Even assuming that the EQA, in particular s. 34A applies, is there a requirement for the

respondents to be supplied with copies of the EIA for the project prior to the approval of

the EIA and for them to make comments? My perusal of s. 34A of the EQA shows that it

has no such requirements. I have to turn to the Handbook whether such rights exist. It

was contended by counsel for the respondents that the Handbook is the guidelines

prescribed by the Director General which is provided for by s. 34A(2) of the Act. Do the

guidelines by the Director General have a force of law upon which the failure to supply

will nullify the report or non-compliance of it will subject the offender to be penalized?

My reading of s. 34A does not point to that. Section 34A, in particular sub-s (8), makes it

an offence for a person not submitting a report or not complying with the conditions

imposed by the Director General or for carrying on the activity without the report being

approved. Certainly, there is no provision under s. 34A that the report must be supplied

to the public and that failure to do so will nullify the whole activity. Subsection (8) makes

it clear that if an activity is not carried out in accordance with the provisions of the other

subsection, then the person carrying on that activity is subjected to a daily penalty until

he complies with the provisions. That in my view does not nullify the activity as a

whole....The other point which is bothering me is whether the Handbook has a force of

23

law. I had the opportunity of going through the Handbook and my reading of the various

passages indicates to me that failure to comply with the guidelines may render the

report to be rejected by the Director General. On the other hand, the second paragraph

of cl 3.4.7 clearly provides for a report not to be made public. Thus, Non-compliance

with the Handbook would not render the project to be nullified which will attract the order

of a declaration." (emphasis added)

Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubek & Ors and other

appeal [1997] 4 CLJ 253; [1997] 3 MLJ 23. GOPAL SRI RAM

“Although there are provisions under the Act and the Ordinance for an EIA to be

submitted for it to be approved by the Director General or the Board as the case may

be, neither in the Act nor in the Ordinance is there a requirement for the report to be

made public. The Guidelines by the Director General, in any case, has no force of law.

Noncompliance with it, therefore, would not nullify the Project or attract an order for a

declaration.”

Other activities for are prescribed activities under the Environmental Quality

(Prescribed Activities) (Environmental Impact Assessment) Order, 1987

INDUSTRY: (a) Chemical - Where production capacity of each product or of combined

products is greater than 100 tonneslday. (b) Petrochemicals - All sizes. (C) Non-ferrous

- Primary smelting: Aluminium - all sizes Copper - all sizes. Others - producing 50

tomes/&y and above of product. - Cement - for clinker throughput of 30 tomes/hour and

above. (d) Non-metallic - Lime - 100 tonnes/day and above burnt lime rotary kiln or 50

tonnestday and above vertical kiln. (e) Iron and steel - Require iron ore as raw materials

for production greater than 100 tonneslday; or - Using scrap iron as raw materials for

production greater than 200 tonnestday. (f) Shipyards - Dead Weight Tonnage greater

than 5,000 tonnes. dg) Pulp and paper industry - Production capacity greater than 50

tomesiday. 9. INFRASTRUCTURE: (a) Construction of hospitals with outfall into

beachfronts used for recreational purposes. (b) Industrial estate development for

medium and heavy industries covering an area of 50 hectares or more. (c) Construction

of expressways. (d) Construction of national highways. (e) Construction of new

townships. 10. PORTS: (a) Construction of ports. (b) Port expansion involving an

increase of 50 percent or more in handling capacity per annum. 11. MlNING: (a) Mining

of minerals in new areas where the mining lease covers a total area in excess of 250

hectares. (b) Ore processing, including concentrating for aluminium, copper, gold or

tantalum. (c) Sand dredging involving an area of 50 hectares or more. 12.

PETROLEUM: (a) Oil and gas fields development. (b) Construction of off-shore and on-

shore pipelines in excess of 50 kilometres in length. (c) Construction of oil and gas

separation, processing, handling, and storage facilities. (d) Construction of oil refineries.

(e) Construction of product depots for the storage of petrol, gas or diesel (excluding

service stations) which are located within 3 kilometres of any commercial, industrial or

residential areas and which have a combined storage capacity of 60,000 barrels or

more. 1 3. POWER GENERATION AND TRANSMISSION: (a) Construction of steam

24

generated power stations burning fossil fuels and having a capacity of more than 10

megawatts. (b) Dams and hydroelectric power schemes with either or both of the

following: (i) dams over 15 metres high and ancillary structures covering a total area in

excess of 40 hectares; (ii) reservoirs with a surface area in excess of 400 hectares. (c)

Construction of combined cycle power stations. (d) Construction of nuclear-fueled

power stations. 1 4. QUARRIES : Proposed quarrying of aggregate, limestone, silica,

quartzite, sandstone, marble and decorative building stone within 3 kilometres of any

existing residential, commercial or industrial areas, or any area for which a licence,

permit or approval has been granted for residential, commercial or industrial

development. : 5. RAILWAYS: (a) Construction of new routes. (b) Construction of

branch lines. 1 6. TRANSPORTATION: Construction of Mass Rapid Transport projects.

17. RESORT AND RECREATIONAL DEVELOPMENT: (a) Construction of coastal

resort facilities or hotels with more than 80 rooms. (b) Hill station resort or hotel

development covering an area of 50 hectares or more. (c) Development of tourist or

recreational facilities in national parks. (d) Development of tourist or recreational

facilities on islands in surrounding waters which are gazetted as national marine parks.

18. WASTE TREATMENT AND DISPOSAL: (a) Toxic and Hazardous Waste- (i)

Construction of incineration plait. (ii) Construction of recovery plant (off-site). (iii)

Construction of wastewater treatment plant (off-site). (iv) Construction of secure landfill

facility. (v) Construction of storage facility (off-site). (b) Municipal Solid Waste- (i)

Construction of incineration plant. (ii) Construction of com posting plant.

Conservation of hill land and the protection of soil from erosion and the inroad of

silt

LAND CONSERVATION ACT 1960 (Act 385)

This is an Act relating to the conservation of hill land and the protection of soil from

erosion and the inroad of silt. According to the Ministry of Housing and Local

Governments of Malaysia (KPKT 1997), hill sites will be classified as high risk if the

lands have natural or original gradient of the slopes of 25 degrees and steeper

Restrictions on clearing and cultivation of hill land

No person shall clear any hill land or interfere with, destroyor remove any trees, plants,

undergrowth, weeds, grass or vegetationon or from any hill land:Provided that it shall be

lawful for the Land Administrator, on

the application of the owner or occupier of any hill land, to authorize by permit in writing

under his hand, subject to such terms and conditions and to such extent and in such

manner as may be specified in such permit—

(a) the clearing of such hill land for the purpose of cultivation;

(b) the clearing or weeding of such hill land under lawful

25

cultivation.

(2) Any person who fails to comply with any terms or conditions prescribed in a

permit issued under subsection (1) shall be deemed to have contravened this

Act.

(3) Whenever the Land Administrator declines to issue a permit under this section in

terms acceptable to the applicant he shall, on being requested so to do by the

applicant, forthwith issue to him a certificate under his hand setting forth the

nature of the permit asked for and the grounds of such refusal and the date of

issue of such certificate.(Section 6)

As to what is hill land is left to the wisdom of the state namely to make Declaration of hill

land as the Ruler in Council or the Yang di-Pertua Negeri in Council of a State may, by

notification in the Gazette, declare any area or class or description of land in the State

to be hill land for the purposes of this Act(Section 3)

On the environmental aspects, The EnvironmentalQuality Act 1974 gives the Minister

the power to order and prescribe conditions on any activity which may have significant

environmental impact.

The following two prescribed activities under The Environment Quality (Prescribed

Activities) (EIA) Order 1987 are relevant to hill-site development:-Conversion of hill

forest land to other land-use

covering an area of 50 hectares or more (Paragraph

6: Forestry)Hillstation resort or hotel development covering an area of 50 hectares or

more (Paragraph 17:Resort and Recreational Development)

Environmental Impact Assessment (EIA) Report should be carried out according to

prescribed guidelines, particularly in relation to assessment of the impact or likely

impact of such development on the environment and proposed measures to prevent,

reduce or control the adverse impact on the environment are being incorporated (534A

of EQA).

In some states, The Land Conservation Act 1960 has been applied to prescribe certain

areas as hill land by notification in gazette (S.3). For example lands in Penang that are

generally above 1,000 ft (300 m) have been prescribed as hill land and therefore

development is not allowed (S.6). The technical definition for the gazette is not provided

and the classification is unclear and merely based on altitude .Guidelines for

development on hill-sites Gue See-Sew & Tan Yean-Chin

Gue & Partners Sdn Bhd, Kuala Lumpur, Malaysia

26

The need to consolidate the laws relating to sewerage systems and sewerage

services

Sewerage Services Act 1993 Act 508

This an Act to amend and consolidate the laws relating to sewerage systems and

sewerage services throughout Malaysia for the purpose of improving sanitation and the

environment and promoting public. Sewerage Services are an important urban

development and service that is crucial towards promoting sound urban health. It

consists of facilities for the collection, treatment and disposal of human waste and other

wastewaters generated from urban dwellings and commercial facilities.

It is important to restate the recital which spells out the reason for this new Act which is:

“AND WHEREAS matters relating to sewerage systems and sewerage services are now

administered by the various local authorities:

AND WHEREAS it is desired to have uniform law and policy in matters relating to

sewerage systems and sewerage services throughout Malaysia:

AND WHEREAS it is desired for the purpose of such uniformity that executive authority

be conferred on the Federation for matters relating to sewerage”

Upon the coming into operation The Federal Government the executive authority with

respect to all matters relating to sewerage systems and sewerage services throughout

Malaysia and not Local Authorities as before and all the properties relating to sewerage

was transferred to the Federal Government which then appointed Indah Water

Konsortium as sewerage services contractor for the whole country.

“sewerage system” under the Act means a system incorporating sewers, disposal pipes,

pumping stations or treatment works or any combination thereof and all other structures,

equipment and appurtenances used or intended to be used for the collection,

conveyance, pumping or treatment of sewage or the disposal of treated sewage effluent

or sludge”;Section 2

“sewerage services” means the collection, conveyance, treatment and disposal of

sewage, and includes the operation and maintenance of a sewerage system and the

clearing, cleansing and emptying of septic tanks; Section 2

The Sewerage Services Department was set up and the Director General has the

following powers and functions:

(a) to formulate and implement a plan so that all reasonable demands for sewerage

services are satisfied;

(b) in consultation with the relevant authorities, prepare a structure plan formulating

the policy and general proposals in respect of the development of any new

sewerage system and measures for improvement of any existing sewerage

system;

27

(c) to prescribe the minimum standards and specifications of any installation or

equipment relating to sewerage systems, septic tanks, connections and private

connection pipes and to register persons supplying such installation or

equipment;

(d) to set standards and specifications and to prescribe codes of practice for the

planning, design, construction, installation, commission and maintenance of

sewerage systems;

(e) to exercise regulatory functions specified in this Act and any regulation made

under this Act;

(f) to issue licences under this Act;

(g) to secure that the functions and obligations of any sewerage services contractor

with whom an agreement has been entered into under section 7 are properly

carried out throughout Malaysia;

(h) to ensure that a sewerage services contractor with whom an agreement has

been entered into under section 7 is able to finance the proper carrying out of his

functions;

(i) to promote the interests of customers of sewerage services or connection

services provided by any person licensed under this Act in respect of—

(i) the prices to be charged for the services;

(ii) the quality of the services;

(iii) in relation to sewerage services, the continuity of the services;

(j) so far as it appears to him practicable from time to time to do so, to keep under

review the performance of every sewerage services contractor with whom an

agreement has been entered into under;

(k) to issue certificates of competency to persons qualified to manage, operate and

maintain a private sewerage system;

(l) to carry on such other activities and enter into such contractual arrangements as

may appear to the Director General requisite, advantageous or convenient for the

purpose of carrying out, or in connection with, the performance of his powers and

functions under this Act (Section 7)

Requirement that proper drainage and connection for sewage be made

(1) If any building is at any time not drained for sewage in accordance with this Act

or any regulation made under this Act or otherwise to the satisfaction of the

Director General by a sufficient private connection pipe communicating with a

28

public sewer or public sewerage system, the Director General may give notice in

writing requiring the owner, or if the owner cannot with reasonable diligence be

traced the occupier, thereof to construct or lay from such building a pipe of such

materials or size at such level and with such fall as the Director General thinks

necessary for the draining of sewage from the building.

(2) If the owner or occupier fails to comply with a notice given under subsection (1)

the Director General may apply to a Magistrate’s Court for a mandatory order

requiring the owner or occupier to construct or lay the pipe specified in the

notice.(Section 17)

The Planning functions relating to sewerage now vest with Director General Sewerage

Approval required for construction of sewerage system or septicTank as no person shall

construct any sewerage system or septic tank without the prior written permission of the

Director General approving the plans and specifications of the proposed sewerage

system or septic tank but the Director General may delegate his powers under this

section to a local planning authority and the local planning authority shall exercise the

delegated powers in accordance with the directions of the Director General. (Section

31)

Penalty in respect of nuisance, etc., caused by private sewerage

system

The owner of—

(a) any private sewerage system or septic tank so foul or in

such a state or so situate as to be a nuisance or a danger

to health; or (b) any building which—

(i) is not kept in a clean state and free from effluent arising from any private

sewerage system or septic tank; or

(ii) is not ventilated in such manner as to render harmless as far as practicable any

gas, vapour, dust or other impurity that is harmful to health generated from that

private sewerage system or septic tank, shall be guilty of an offence and shall, on

conviction, be liable to a fine not exceeding ten thousand ringgit.

(3) A Magistrate’s Court may, on the application of the Director General, order the

owner of the sewerage system, septic tank or building referred to in subsection

(1) to abate such nuisance, harm or danger. (Section26)

The agent in the form of private consortium has been identified and entrusted with the

responsibility of sewerage development and management in Malaysia. It is expected

that efficient sewerage services will be provided, contributing to clean and healthy urban

areas and safe guarding surface water from contamination. The impetus given to

privatization of sewerage services is expected to initiate and promote Malaysian low

29

cost technology for sewerage systems which will than set the stage for export of

technology and expertise to other developing countries 8

Solid Waste Management - a critical challenges in sustainable development

SOLID WASTE AND PUBLIC CLEANSING MANAGEMENT ACT 2007(Act 672)

The preamble of the act states that it is an Act to provide for and regulate the

management of controlled solid waste and public cleansing for the purpose of

maintaining proper sanitation and for matters incidental thereto. Solid Waste

Management is one of the critical challenges in sustainable development in Malaysia as

it is one of the crucial factors that influencing the quality of life in urban areas

Definition of “household solid waste” means any solid waste generated by a

household, and of a kind that is ordinarily generated or produced

by any premises when occupied as a dwelling house, and includes

garden waste

Federal Government to have executive authority

1. The Federal Government shall, upon the coming into operation

of this Act, have executive authority with respect to all matters relating to the

management of solid waste and public cleansing throughout Peninsular Malaysia

and the Federal Territories of Putrajaya and Labuan.

Functions and powers of Director General

2. (1) Without prejudice to any other functions conferred on the

Director General by this Act, the Director General shall have the

following functions:

(a) to propose, after taking into consideration the recommendation from the

Corporation, policies, plans and strategies in respect of solid waste and public

cleansing management to the Minister;

(b) to formulate, after taking into consideration the recommendation from the

Corporation, plans for solid waste management including the location, type and

size of new treatment facilities, the coverage areas of the solid waste

management facilities, the solid waste management schemes to supply

30

controlled solid waste to the solid waste management facilities and the timescale

for the implementation of the plans;

(c) to set, after taking into consideration the recommendation from the Corporation,

standards, specifications and codes of practice relating to any aspect of solid

waste management services and public cleansing management services;

(d) to exercise the regulatory functions specified in this Act and any regulations

made under this Act;

(e) to grant licenses and approvals under this Act; and

(f) to carry out such other activities for the purpose of carrying out, or in connection

with, the performance of his functions under this Act.

3. The Director General shall have all such powers as may be necessary for, or in

connection with, or incidental to, the performance of his functions under this Act

Power to impose charges, etc.

4. The Minister may from time to time prescribe, either

separately or as a consolidated rate, controlled solid waste charges,

fees or levy which shall be paid by—

(a) the owner;

(b) the occupier;

(c) the local authority; or

(d) any other person,

to whom solid waste management services are provided underthis Act. Power to direct

for controlled solid waste to be separated, handled and stored

5. The Director General may give written directions as he considers fit to any

person for the purpose of ensuring the compliance with this Act, on the

separation, handling and storage of any controlled solid waste in the possession

of such person.

(1) Any person who fails to comply with the direction under this subsection

(2) commits an offence and shall, on conviction, be liable to a fine not

exceeding one thousand ringgit.

31

SUSTAINABLE RATING SYSTEM IN IN MALAYSIAN HOUSING DEVELOPMENT

PRACTICE.

Green Building Index (GBI )

There are numerous sustainable rating systems for buildings and groups of buildings

that have been developed and rating tools like Comprehensive Assessment System for

Building Environmental Efficiency (CASBEE), Leadership in Energy and Environmental

Design (LEED), British Research Establishment Environmental Assessment Method

(BREEAM), Green Building (GB) Tool and Green Star influential in the development of

other

rating systems. Malaysia has recently launched a rating system for buildings called the

Green Building Index (GBI). This system is similar to that of the BREEAM for

EcoHomesin the U.K., the LEED for Homes in the U.S., the CASBEE for Homes

(detached houses) inJapan, Green Star for Multi-Unit Residential in Australia, and

Green Mark for Residential However, Malaysia has yet to introduce a rating system for

measuring sustainable housing development in both urban and suburban areas

Sustainable development concept was introduced in Malaysia since many years ago,

but the parties in the construction industry are still less focused on this concept. Public

policies and regulatory framework do not encourage the sustainable housing

development in the construction sectors. Local authority only enforces the developers to

install rainwater harvesting systems in the semi-detached house and condominium.

Although the Malaysian government has to take initiatives to encourage sustainable

housing development, there is still the lack of enforcement and monitoring of laws and

legislations.

Although Green Building Index has been introduced in Malaysia as a benchmark for

energy efficiency and others sustainability criteria, but most of the developers refuse to

refer to this assessment guideline in project development. They mentioned that most of

the parties in the construction industry are not caring for this sustainable housing

concept due to the government policies keep changing and makes them confuse about

the industry’s real condition. Thus, they are not willing to take a risk to implement an

unconfident concept in the housing development.

Besides, most of the development plans take a long period of times to gains the

approval from local council. This causes the industry stakeholders reluctant to

implement this sustainable housing development. Normally, process to obtain approval

for sustainable housing development is complicated, thus the developers are not willing

to waste the time and money in implementing this concept

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GreenRE

On the other hand Rehda the Malaysia Housing Developers Association has introduced

GreenRE. GreenRE was officially launched by YB Tan Sri Peter Chin Fah Kui, the then

Minister of Energy, Green Technology and Water (KeTTHA) on 22 March 2013.

GreenRE incorporates internationally recognised best practices to provide the industry

with a more efficient and practical green rating tool. It is aimed at promoting greater

adoption of green practice and technology amongst the industry players and offers

practical and efficient solutions to green certification at affordable costs to the industry.

Assessment Criteria

GreenRE standard tool of assessing a building’s performance is based on the following

key criteria:

a) Energy Efficiency

Focuses on the approach that can be used in the building design and system selection

to optimise the energy efficiency of the buildings.

b) Water Efficiency

Focuses on the selection of water use efficiency during construction and when buildings

are in operation.

c) Environmental Protection

Focuses on the design, practices and selection of materials and resources that would

reduce the environmental impacts of built structures.

d) Indoor Environmental Quality

Focuses on the design strategies that would enhance the indoor environmental quality

which includes air quality, thermal comfort, acoustic control and day lighting.

e) Other Green Features

Focuses on the adoption of green practises and new technologies that are innovative

and have potential environment benefits.

f) Carbon Emission of Development

Focuses on the use of carbon calculator to calculate the carbon emission of the

development.

The rating system in Malaysia is still in its infancy stage and further study is required to

ensure the reliability and viability of this system as a tool for measuring sustainability in

housing development 9.

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Social Role of sustainable development - Control over prices of houses

Control over prices of houses.

There have been a lot of discussions lately on the escalating prices of new houses

which are beyond the reach of many young people. Under such circumstances, some

have advocated controlling the price of property. This brings up the issue of whether the

state, the local authority or the ministry has the power to fix the prices of houses.

This issue is not new and has been discussed previously in the courts of law. One such

case is the landmark case of Majlis Perbandaran Pulau Pinang vs Syarikat

Berkerjasama Serbaguna Sungai Gelugor [1999] 3 CLJ 65.

In this case, the dispute was on whether Majlis Perbandaran Pulau Pinang (Penang City

Council) had the power to impose the disputed condition that 30 per cent of the low cost

houses have to be built and sold at a cost not exceeding RM25,000 per unit in

accordance with Garispanduan-garispanduan mengenai rumah pangsa murah Majlis

(Council guidelines on low cost housing).

The Society agreed at its AGM that the selling price of a two-bedroom flat, measuring

an average of 500 sq ft, shall not exceed RM32,000 and a three-bedroom flat,

measuring an average of 650 sq ft, shall not exceed RM45,000.

Being in a dilemma due to the ceiling price stipulated in the guidelines on low-cost

housing, they sought the intervention of the courts as they were of the view that the

Council had no such power to impose such conditions relating to prices of houses.

The case, described as a “veritable legal porcupine bristling with interesting and

complex points of Law” went on appeal to the Federal Court. It was a landmark case in

the field of Planning Law and Judicial Review in this country and counsel on both sides

put up very convincing arguments for six days.

At the end, Edgar Joseph Jr FCJ (Federal Court Judge) made no apologies for the

acres of paper and streams of ink that were devoted to the preparation of the

unanimous judgment by the Federal Court.

Edgar Joseph Jr FCJ held that It is axiomatic that local authorities are creatures of

statute and their qualities and powers can only be derived by reference to what is

express or implicit in the statutes under which they function (See, for example, Lord

Wilberforce in Bromley L.B.C. v. G.L.C. [1983] 1 AC 768, 813).

34

The statutory scheme of the Local Government Act confers upon local authorities a

distinct political function, to which the Courts, by application of ordinary principles of

statutory construction should give effect.

“Taken at its full face value, the above provisions would appear to confer unlimited

power on the planning authority to impose any condition it wishes, for example, because

it considers the condition to be in the interest of the housing policy of the State

Government. But, the matter must be probed further.”

On probing deeper, the Federal Court concluded that the whole of the decision of Majlis

Perbandaran Pulau Pinang was wholly null, void and of no effect and stated that the

Majlis had no power to fix the prices of houses.

It is therefore that there no special legislation for state, local authority of federal

government to impose price control on property not withstanding their noble intention.

Discounts

There also cases where the local planning authority will insist that discounts be given to

certain category of buyers.

In Cayman Development (K) Sdn Bhd vs Mohd Saad Bin Long [1999] MLJU 290,

Cayman was a housing developer who wanted to develop a piece of land in the Mukim

of Alor Merah, Alor Setar, into a low-cost housing scheme and the State Authority of

Kedah imposed a condition:

“Menjual rumah-rumah yang dibina dengan harga kurang lima peratus daripada

$25,000.00 ($23,750.00).”

[Translation: “To sell the built houses with five per cent discount off $25,000.00

($23,750.00).”]

When the developer sold the houses without the stipulated discount, the purchasers

sued the developer to enforce the discount as imposed by the State Authority of Kedah.

At the High Court, Hishamuddin J held that the State Authority has no power to fix the

requirements regarding the price of each of the units to be sold to the public as well as

the discount of five per cent as these are not the kind of requirements envisaged by the

National Land Code.

Hishamuddin J: “I have no doubt whatsoever of the good intention of the State

Authority, and that in prescribing the price and the discount, it certainly had in mind the

interest of the low income section of the general public, who would constitute the

potential buyers of the low-cost units. Yet, with the greatest respect, I do not think that

Parliament, in enacting subsection (5)(c), had in mind to confer on the State Authority

such a wide power so as to empower it to even fix the price of the low-cost units for the

purpose of sale to potential buyers, let alone to prescribe any discount.

35

“Such requirements, as imposed, are commercial in nature. The State Authority, being a

regulatory body on matters pertaining to land, in determining the nature of the

requirements to impose (if any) when approving a conversion, should avoid entering

into the commercial arena; instead, it should only confine itself to matters directly

pertaining to the usage of the land and the imposition of rent and premium

(consequential to the conversion).”

Both these cases illustrate the point that both the state authority and Majlis have no

power to impose any condition relating to prices of houses and discounts as these are

considered to be commercial aspects that both should avoid entering into. Being mere

regulatory bodies, they should only confine themselves to regulatory matters such as

prescribing the usage of land and the imposition of rent and premium consequential to

the conversion (of usage to the land).

Both cases remain unchallenged and continue to be good precedents as there have not

been any legislative amendments to overturn these decisions

Housing Development (Control and Licensing) Act 1966. (Act 118) is a specific

piece of social legislation to protect home buyers

Housing Development (Control and Licensing) Act 1966. (Act 118)

It is quite apt for me to state at the offset the enshrined guiding principles that relate to a

social and benevolent legislations like Act 118 specifically and these are stated as

follows:

The housing legislation is principally aimed at protecting the interest of purchasers: see

Malaysian Law on Housing Developers, 2nd edn by Salleh Buang, 2002 pp. 7 and

8;

It must be borne in mind that the Housing Act is a specific piece of social legislation to

protect home buyers, most of whom are people of modest means, from rich and

powerful developers, Parliament found it necessary to regulate the sale of houses and

protect buyers by enacting the Act. SEA Housing Corporation Sdn Bhd v Lee Poh

Choo [1982] 2 MLJ 31;

This approach was also echoed by VC George J in Khau Daw Yau v Kin Nam Realty

Development Sdn Bhd [1983] 1 MLJ 335 where His Lordship said at p 341:

“The scheme of the Housing Developers (Control and Licensing) Act 1966 and the

Rules of 1970 is to provide a measure of protection to purchasers of housing

accommodation in a housing development against unscrupulous developers. “

36

In Penang Development Corporation v Teoh Eng Huat & Anor [1993] 2 MLJ 97, SC,

Jemuri Serjan CJ (Borneo) speaking for the Supreme Court had this to say (see p

118):

“We are mindful of the fact that the Act was intended to protect innocent buyers from

some unscrupulous and dishonest housing developers. There had been instances of

developers who abandoned their housing projects when running out of funds to

complete them, or heavily indebted to banks or financial institutions and absconded

after having accepted deposits or full payments from the prospective buyers, especially

during hard times in the property market. Many also had become bankrupts while others

disappeared overseas out of the clutches of the law and legal process.”

LICENSING OF DEVELOPERS

A housing developer must be in possession of a valid licence issued under the Act

before he undertakes any housing development; section7& 5 (1).

A licence is required for each housing development. Where a housing development is to

be undertaken in phases, a licence is required for each and every phase of such

housing development: see Regulation 3 (5) of the 1989 Regulations.

Any misrepresentation of the information furnished by the developer in its application for

the licence or for a renewal of the licence is an offence under the Regulations: see

Regulations 3(2) and 4(4) respectively.

There are stringent conditions imposed under the 1966 Act which must be complied

with before an applicant can be granted a licence. No licence will be granted unless the

company has an issued and paid-up capital in cash of not less than RM250-000 (if

applicant is a company) or has made a deposit with the Controller of not less than

RM100, 000 in cash or in the form of a bank guarantee if the applicant is a “person or a

body of persons” (in other words, a sole proprietorship or a partnership): (section 6).

The Act also requires that no member of the company or firm should have been

convicted of an offence involving fraud or dishonesty. However, Section 6(2) empowers

the Minister, in his absolute discretion, to waive any or all of the conditions mentioned

above.

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DUTIES OF HOUSING DEVELOPERS

The duties of a licensed developer under section 7 of the Act are as follows–

(a) Within four weeks of making any alterations in any of the documents submitted to

the Controller under section 5(3), he must furnish to the Controller written

particulars of such alterations.

(b) He must exhibit, at all times, in a conspicuous position in any office or branch

office, a copy of his last audited balance sheet and the names and particulars of

each person who has the control and management of the business of the

company, a copy of his developers’ licence, the advertisement and the sale

permit;

(c) He must keep such accounting and other records as will sufficiently explain the

transactions and financial position of the company;

(d) He must appoint auditors each year to carry out the annual audit;

(e) Within three months of the close of the company’s financial year, he must send to

the Controller a copy of the auditor’s report prepared under section 9 of the Act

within “six months;

(f) He must submit a statement in the prescribed form including a report of the

progress of the housing development to the Controller twice a year not later than

January 21 and July 21 of each year ; and

(g) He must forthwith inform the Controller at any stage of the housing development

before the issuance of the CCC where he considers that he is likely to become

unable to meet his obligations to the purchasers.There are also provisions

relating to opening of Housing Development Account wherein purchasers monies

are deposited.

Control on Advertisement by developers.

Under Regulation 5 of the Housing Development Act (Advertising and Permit)

Regulations 1989, any advertisement and sale material that is used to make the sale

must be submitted in its final content and form-including all disclaimers-for approval by

the Controller. Should there be any changes or deviations from the first proposed

materials, these should be approved by the Controller as well, or they would be deemed

invalid. Under the Regulation, any misleading statement, false representation, or

description of the particulars or information required is an offence.

38

Standard Sale and Purchase Agreement

Under Regulation 11 of the Housing Developers (Control and Licensing) Regulations

1989 every contract of sale and purchase of a housing accommodation together with

the subdivided portion of land appurtenant thereto shall be in the form prescribed in

Schedule G and where the contract of sale is for the sale and purchase of a housing

accommodation in a subdivided building, it shall be in the form prescribed in Schedule

H. No housing developer is allowed to collect any payment by whatever name called

except as prescribed by the contract of sale.

A special tribunal is also set up to hear purchaser grievances in a fast and efficient

manner, thus allowing the legislation to play a benevolent social role.

Conclusion

The main obstacle in the adoption of green buildings in the country is to create a

paradigm shift in environmental issues for all Malaysians, especially those in the

housing industry. Incentives relating to tax and stamp duty may not be enough to lure

developers into adopting green building module. Lack of awareness, even from the

architects, consultants, and clients have been repeatedly mentioned as the key issue to

the slow progress and reluctance in getting involved in green buildings. The grouses

from the architects mainly, is that there no competent local energy specialist to provide

useful data and advice on green building systems and concepts. Awareness on the

environmentally-friendly buildings and products must also be heightened, not just to the

relevant parties in the building industries, but also to the general public so that more

demand for green buildings can be achieved10.

There will be a need to have more specific legislation which will make it compulsory for

all developers of housing projects to import some green building features in all of their

future developments before giving building approvals. This way, developers have no

choice but to adhere to the requirements pushing sustainable development to a higher

level in Malaysia.

Current policies support sustainable building industry activities. National and state laws

and regulations as discussed above including the Uniform Building By-laws, provide for

such activities to be monitored and enforced by local authorities. State governments

have played an important role in fixing quotas and price ceilings to ensure access to

low-cost housing by the poor thereby ensuring sustainable housing development in the

country.

Dato’ Pretam Singh Darshan Singh ,Pretam Singh, Nor & Co. Kuala Lumpur.

pretam-s@yahoo.com

29 Jun 2015

39

pretam_s@yahoo.com

References

(1) World Commission on Environment and Development (WCED): Our common future. (The Brundtland Report): Oxford University Press, 1987

(2) UK Department of the Environment, Transport and the Regions: A Better Quality

of Life: a strategy for sustainable development for the UK: TSO May 1999

(3) M.C. Cordonier Segger & A. Khalfan, Sustainable Development Law: Principles,

Practices & Prospects (Oxford: Oxford University Press, 2004). (4) AIR 1984 SC 802; 1984 Lab IC 560; 1983 (2) SCALE 1151; (1984) 3 SCC 161;

[1984 ] 2 SCR 67; 1984 (16) UJ 29

(5) The Supreme Court, in S.P. Gupta and Others v President of India and Others

(1982), defined public interest litigation as a 'judicially innovated new strategic device for purpose of providing access to justice to large masses of people who are denied their basic human rights and to give judicial redress for legal wrong or injury caused to such determinate class of persons' (ILR, 2001: 44

(6) A.P. Pollution Control Board II v Prof. M.V. Naidu and Others (Civil Appeal Nos.

368-373 of 1999). Cited from John Lee 'Right to Healthy Environment', Columbia Journal of Environ- mental Law, Vol. 25, 2000.

(7) [1996] 2 CLJ 771; [1996] 1 MLJ 261 at pages 288 and 289. (8) Dr M.S. Pillay, Ministry of Health, Malaysia. 20th WEDC Conference Colombo,

Sri Lanka, 1994

(9) SUSTAINABLE RATING SYSTEM IN MALAYSIAN HOUSING DEVELOPMENT: TOWARDS ESTABLISHING SUSTAINABILITY INDEX Abu Hassan Abu Bakar 1*,School of Housing, Building and Planning UniversitiSainsMalaysia(USM)

(10)Obstacles in Implementing Green Building Projects in Malaysia: Mohd Reza bin Esa, Mohd Arif Marhani, Rostam Yaman, Ahmad Arzlee Hassan Noor Hanisah Noor Rashid, Hamimah Adnan Australian Journal of Basic and Applied Sciences, 5(12): 1806-1812, 2011 ISSN 1991-8178

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