Penang Island’s local plan poser
Sonia Ramachandran 
Reclaimed land not gazetted under MBPP’s area falls under the purview of the state government and the State Planning Department

Imagine buying a luxurious seafront condominium with a glorious ocean view only to have your view obstructed by another high-rise tower some years later.

You thought there would be no developments to mar your view, but a new project was approved which will do exactly that.

The failure to come up with a local plan after such a long time is in breach of the law, says Fernandez

These are the consequences of local authorities not having local plans that spell out planning and development controls, which will lead to haphazard developments approved on an ad hoc basis, says local government and planning law expert Derek Fernandez.

Fernandez, who is also a Petaling Jaya City Council (MBPJ) councillor and a member of its One Stop Centre which deals with planning and development control approvals, says long-term property value is related to planned and sustainable development.

In the case of Penang, he tells FocusM that without a local plan, the state cannot claim to carry out sustainable development and this will be detrimental to residents and businesses.

Fernandez points out that Kuala Lumpur also does not have a gazetted local plan.

He says the National Physical Planning Council as well as the Federal Department of Town and Country Planning have directed all local authorities and planning authorities in the peninsula to come up with local plans.

In his opinion, the failure to come up with a local plan after such a long time is in breach of the law.

However, Penang Island City Council (MBPP) mayor Datuk Maimunah Mohd Sharif says the draft of the Penang Island local plan 2020 for the area under the administration of the MBPP is currently being reviewed by the council.

The Penang Island draft local plan was prepared in 2005 and passed by the council in 2008, says Maimunah

The purpose of this, she says, is to streamline the local plan with the State Structure Plan 2030 (RS 2030), the Special Area Action Plan (RKK) for the George Town Heritage site, the RKK for Penang Hill and the RKK for Penang Botanic Gardens before it is exhibited to the public and tabled for approval by the state government to be gazetted.


Prepared but not gazetted

In an email reply to FocusM’s queries, Maimunah explains that according to section 12(1) of the Town and Country Planning Act 1976, a local planning authority can, if it thinks fit, prepare a local plan while the structure plan is being prepared, for any area under its jurisdiction.

She says under section 12(2) of the same Act, a draft local plan has to be prepared immediately once a structure plan is in force.

Section 12(2) states: “Where a structure plan for the state has come into effect, the local planning authority shall as soon as practicable prepare a draft local plan for the whole of its area.”

Therefore, Maimunah says the state government, through MBPP, took the initiative to prepare the Penang Island draft local plan in 2005 that was subsequently passed by the council in 2008.

In conjunction with George Town being declared a world heritage site in 2008, she says the RKK and management plan for the George Town Heritage Site had to be prepared immediately. “Thus, the state government decided that this Special Area Plan for the George Town World Heritage Site be prepared first,” she says.

Maimunah adds the Penang Island local plan will be tabled again before the State Planning Committee (SPC) once the draft Structure Plan 2030 is gazetted.

“Therefore, once the RKK for the George Town Heritage Site was gazetted on Sept 1, 2016, the draft Penang Island local plan was reviewed to be streamlined together with the George Town heritage site RKK that has been finalised,” she says.

However, Fernandez is not convinced by this argument. He questions why a draft was prepared and passed by the local council in 2008 if one does not plan to implement it.

“What was the State Planning Committee doing for the last nine years and in the meantime, thousands of development orders are issued,” he says, adding that ad hoc developments continued to be approved during that time.


Structure plan alone not enough

Fernandez says the structure plan is basic and does not tell you where you can develop, the development intensity and the plot ratio, unlike a detailed local plan which also contains detailed spatial planning.

“More importantly, section 18 of the Town and Country Plan-ning Act 1976 does not apply where there is no local plan.

“Section 18 prohibits any development inconsistent with a local plan. By not having a local plan, you are able to avoid this and the so-called guidelines are not necessarily legally binding,” he says.

Section 18 (1) states: “No person shall use or permit to be used any land or building otherwise than in conformity with the local plan.”

Fernandez also dismisses arguments that a local plan would mean residents losing their rights of appeal in terms of development orders.

“The so-called loss of the right of appeal for residents where there is a local plan is a red herring because the local plan would have been passed after two rounds of public objection/comment. And section 18 of the Town and Country Planning Act protects residents against any development inconsistent with the plan in a way that an appeal can never do.

“Residents do still have their rights to go to court if the approval is inconsistent with the local plan,” he says.

Maimunah says adjacent landowners will lose their appeal rights if a local plan is passed as notice is required to be given to them in areas where development is planned but which has no local plan.

“But residents are given an opportunity to give feedback during the preparation of the local plan,” she says.

Why the delay?

Repercussions of a local plan not being passed are that developers are having a field day, says Lim

On the delay in approving the Penang Island local plan, former MBPP city councillor Dr Lim Mah Hui says: “I wouldn’t know. The question should be put to the Chief Minister because that is where the delay is.

“The full City Council (MBPP) had already approved the local plan just before I joined the council. It has never been approved by the state and not gazetted at all.”

He says the repercussions of this are that “developers are hav-ing a field day”.

“They can now basically lobby the council, lobby the state and all that to change guidelines… and things get changed all the time. So density changes, height limit changes, zoning, everything.

“Everything that has to do with planning and building and all that can be changed because we don’t have a local plan,” says Lim, who is now a steering committee member of Penang Forum, a loose coalition of various non-governmental organisations in the state.

At press time, Penang Chief Minister Lim Guan Eng and Penang state exco member for Housing and Town & Country Planning Jagdeep Singh Deo did not respond to queries from FocusM on the matter.

Maimunah says the structure plan is currently at the final stages of examination before being tabled before the SPC.

She adds the draft local plan has to be displayed to the public and tabled before the state government prior to being passed to be gazetted.

Maimunah explains there are three major documents for development plans under Section III of the Town and Country Planning Act, namely, the structure plan, local plan, and Special Area Plan.

“The RKK functions like the local plan but has more specific functions involving five aspects, namely, the redevelopment of areas within the city; heritage sites; environmentally sensitive areas; relocation of residents; and areas with special needs,” she says.

She adds the structure plan consists of development policies and strategies about development and general land use for the whole of Penang Island.

“The structure plan also functions to streamline development on Penang Island with development in adjacent states Kedah and Perak.

“The policies and strategic suggestions in the structure plan will be translated in the local plan in the form of maps and written statements which include MBPP’s basic guidelines involving management aspects and development controls,” says Maimunah.

She says Penang Island’s Structure Plan 2020 was gazetted on June 28, 2007.

If the structure plan was gazetted in 2007 and the draft local plan was passed by the MBPP in 2008, why wasn’t the local plan then passed by the state government and gazetted?

That is why Fernandez says it is unacceptable to keep postponing the passing of a draft local plan. “2020 is not even here yet and you say it is outdated?” he asks.

Maimunah says although the local plan for MBPP is still being prepared, the council uses the Policy Plan for Planning and Development Control that was passed on Sept 13, 1996 as a basis for consideration for planning applications for new developments.

When asked if it is better for a local plan not to be gazetted, Maimunah says: “No. A local plan has to be gazetted as per the requirements of the Town and Country Planning Act 1976.”

She adds the local plan for Penang Island involves only areas under the jurisdiction of the city council.

“Any reclaimed land that is not gazetted under MBPP’s area will fall under the purview of the state government and the state Planning Department,” she says.

Maimunah adds that the local plan report must be reviewed every five years and the usage period spans 10 years.

How a local plan is passed

Local government and planning law expert Derek Fer-nandez says a local plan for a particular area is first prepared by the local authority. Then public opinion is sought on what the local plan should contain, in two stages.

The first is under section 12A of the Town and Country Planning Act 1976 which is the feedback stage before the draft is even prepared. The draft is the prepared and tabled under section 13.

Fernandez, who is also a Petaling Jaya city councillor and a member of its One Stop Centre which deals with planning and development control approvals, says the draft of the local plan is then presented for public objection under section 14.

“If there are objections, a special committee is then appointed, usually comprising of state executive committee members who will then hear the objections and make recommendations to the state planning committee.

“These recommendations are then tabled at the state planning committee,” he says, adding these will be presented to the state executive committee for approval.”

Fernandez says once it is approved by the state authority, the local plan takes effect immediately, whether or not it is gazetted.

Impact of disasters magnified

A local plan can help decrease the severity of the impact of environmental disasters such as floods and landslides, says local government and planning law expert Derek Fernandez.

This is because planned infrastructure such as drainage, roads, energy supply and buildings will mitigate against the effects of natural disasters such as floods. This infrastructure would have been designed to cater for contingencies.

A local plan may help decrease the severity of the impact of environmental disasters

Fernandez says global warming and climate change were more prevalent in recent years and it was vital for the government and all regulators to ensure measures were taken to address them in planning infrastructure.

“Sadly, a lot of excuses are given when environmental calamities occur without evaluating why the impact was so severe and whether the existing infrastructure functioned as how it was designed to be.

“However, the principal question is, has the government done all that is reasonable to minimise the impact of heavy rain or landslides?” he asks.

Fernandez says while it is good to have safety guidelines for hillside developments, “it is strange why Penang’s guidelines only apply to land higher than 76m when the risk of hillslope failure is dependent not only on height but location of the land, the gradient and the geohazard mapping of the area”.

Penang Island City Council mayor Datuk Maimunah Mohd Sharif says the state government continuously monitors and controls development activities by preparing and updating guidelines from time to time, especially those involving hilly areas.

She explains that according to the policy of the Penang Island Structure Plan 2020, each development application under the category of “special purpose” as stipulated in the Structure Plan 2007 has to be processed accordingly and tabled at the State Planning Committee.

“According to the procedure for planning approval, each application must obtain approval for a geotechnical report from the Risky Land Development Committee that is coordinated by the Public Works Department before being tabled at the One Stop Centre’s meeting for consideration,” she says.

Maimunah says the state government passed the Safety Guideline for Hillsite Development 2012 on May 14, 2012 as a guide for development on hill areas.

“The state government together with Plan Malaysia@Pulau Pinang (Penang Town and Country Planning Department) has been working diligently to prepare the guidelines for development planning on hill areas to control development activity on identified hilly locations in the guidelines.

“The local plan that is prepared by the Penang Island City Council takes into account each policy by the state government and guidelines approved by the council, including those that are being prepared,” she adds.

This article first appeared in Focus Malaysia Issue 266.