Power of Local Planning Authority in Plan Making

Who is the Local Authority? Is the staff or President of the Council constituted as Local Authority? I believe a lot of confusion here and misinterpretation about the Local Government system in Malaysia. More than often we heard about the complaints of residents in regards to the non performance of the Council through Councillors. While the Councillors point the finger to the staff, they are equally at fault because they are part and parcel of the Local Authority. The decision of the Council is made by the President and all Councillors sitting in the Full Board meeting. Once the Full Board endorses it, the decision becomes the policy of the Council and binding to all. However, if a practice or rule that have not got the endorsement of the Full Board, then logically and rightfully it should not have become the policy of the Council, rather it is an act of administration. For example, if a by-law provides a penalty of up to RM500 for an offence, but the Council by virtue of passing a policy of keeping it at RM150, then the policy should prevail. Any enforcer trying to impose a fine of more than RM150 is constituted of non binding and against the policy set.

Section 5, Town and Country Planning Act, 1976 (Act 172) assigns the local authority as the local planning authority for its area. Section 16(2) of the same Act requests the Local Planning Authority to alter the local plan with specific direction upon receiving the direction from The State Planning Authority. On top of that, consultation with local planning authority must be held too about the proposed direction. It is very clear that in any case in regards to the alteration and proposal of the local plans, the local planning authority has to be in the know and to propose after taking into consideration of the State Planning Committee. It is a prerogative of the Local Planning Authority. Unless a policy has been passed by the Full Board meeting to delegate the power of taking instruction from the Committee, to make proposal and to further the process of displaying, publicity and approving the plan to the department concerned, in no case the department can carry out that process without referring to the Full Board or any standing committee that has been entrusted to do so. The discreption power is with the Full Board, and not the department.

What if a project endorsed by the State Planning Committee but was rejected by the Local Planning Authority earlier because it went against the provision of gazetted Local Plan? Can the State Planning Committee's decision supersede it? Can the Local Planning Authority still say NO even though the State Planning Committee directed alteration of plan to be made under Section 16(2), Act 172? The Act provides steps of procedures to be followed for completion of the process of altering or replacing the Local Plan. It is the prerogative of the State Planning Committee to direct and it is the duty of the local planning to observe the process as provided for. The direction, must have however with consultation with the Local Planning Authority. The Local Planning Authority should have given their views or any considerations during this period or else any publicity process held later should be construed as with consent of the local planning authority. The Council especially the Councillors should not have disputed the proposed alteration unless no prior approval has been given by the Full Board.