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©The Sun (Used by permission)
by Derek Fernandez
 Lack of law or lack of will? The Hulu Klang hill-slope landslide in June saw the loss of lives, including that of a mother still hugging a 4 year old child, and buried under 4 metres of earth. The print media headlines sang the same tune, and readers were entertained to a concert of denials and finger-pointing. The customary rhetoric of "we will investigate", "increase enforcement", "up-grade laws", "the Department of Environment is powerless to impose environment impact assessment statements on lands of less than 50 hectares" is repeated.
Many will still remember the collapse of the Highland Tower on December 11, 1993. What you may not know is that since then, there have been 12 major landslides resulting in fatalities and severe loss and destruction of property. The authorities are not unaware of the areas at risk and experts have warned of more disasters to come.
The tragic mother and child incident and the disasters mentioned above, could have been avoided if existing laws, guidelines and policies, relating to hill-slope development have been strictly complied with.
Any purchaser of a property in a hill-slope development should know something about these laws, guidelines and policies. He should know what enquiries to make and what to look out for, before concluding the purchase.
Applicable laws, regulations and guidelines are abundant. Amongst them are the “Town & Country Planning Act 1976” (TCPA), the “Environmental Quality Act 1974”, the “Federal Territory Planning Act 1982” (FTPA), the “Street, Drainage Act 1974”, the “Garis Panduan Pembangunan Di Kawasan Bukit” (GPPDKB) issued by the Ministry of Housing and Local Government, and the “Garis Panduan Pembangunan Di Kawasan Tanah Tinggi” (GPPDKTT) issued by the Ministry of Science, Technology and the Environment.
A development on a hill-slope is preceded by an application to a local authority under the TCPA or the FTPA for planning approval. It suffices here to refer just to the TCPA to illustrate the application of the relevant laws.
The TCPA requires a planning authority to prepare a development plan for the area within its jurisdiction, and a development plan consists of a structure plan and a local plan. A development plan should formulate clear policies, rules and regulations in relation to any proposed development and use of the land, including measures for the improvement of the physical living environment, the improvement of communications, the management of traffic, the improvement of social-economic well-being, the promotion of economic growth, and measures for facilitating sustainable development of the local area.
While the structure plan contains the macro planning policies, the local plan includes the detailed policies, including measures to protect the environment in the immediate area affecting individual residents. The local plan thus includes written statements and diagrams setting out detailed measures to preserve the natural topography and tree cover.
A development plan is required to contain all the rules, regulations and factors to be taken into account in hill-slope development, and is implemented only after public discussion and objection processes.
Although the TCPA became law in 1976, not every local authority has prepared the local plan. Those that have such a local plan, appears not to have given proper and due regard to important policies and guidelines concerning hill-slope development.
For example, in the Klang Valley and Kuala Lumpur, the Rancangan Struktur Daerah Petaling Dan Sebahagian Daerah Klang (RSDP, gazetted:17.4.1996) and the Kuala Lumpur Structure Plan 2020 (KLSP, gazetted:19.10.2004) contain the following policies in relation to hill-slope development:
(i) RSDP: Policy No. LA 5 - "Uses of land apart from recreation in Highlands and Hilly lands shall not be encouraged";
(ii) KLSP: "Development on hillsides shall be given serious attention in accordance with the prevailing rules and regulations and policies adopted by the government. In particular, the 'fit to terrain' concept in layout design should be applied in all developments in hilly locations: DBKL shall not permit development on hillsides with slopes that exceed the allowable level, rules and regulations set by the Federal Government. DBKL shall ensure that geo-technical studies are carried out for all hillside developments."
The above policies are intended to be further refined in the local plan. Section 18 of the TCPA prohibits any development which is inconsistent with the local plan. In addition, the TCPA and the principles of Administrative Law give legal force to guidelines and policies relating to hill-slope development. Hence lack of enforcement power should not be an issue.
In areas where there is no local plan in force, the developer is required to submit a Development Impact Proposal ("DIA") to the local authority when applying for planning approval. The DIA shall contain a detailed survey of, and the impact the proposed development will have on, the trees, other vegetation, topography, geology and drainage in the surrounding area. These requirements are wide enough to impose an obligation on a developer to comply with all hill-slope guidelines and policies and to furnish environmental reports addressing risk issues in the proposed development, and if properly implemented by the local authority, will safeguard the interests of the residents and purchasers of property in the area concerned.
This article will be continued in Part II which will feature an appreciation of “Garis Panduan Pembangunan Di Kawasan Bukit” and its requirements. The writer is a member of the Conveyancing Practice Committee
Bar Council
Malaysia
www.malaysianbar.org.my Note: This column is brought to you by the Malaysian Bar Council for your information only. It does not constitute legal advice. You should therefore seek professional legal advice for your specific needs. Neither the Malaysian Bar nor the Sun Media Corporation Sdn Bhd shall be liable to any reader who suffers losses as a result of relying on this column.
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