Legislative intervention in promoting sustainable housing development in Malaysia.


Introduction

Sustainable development is most commonly defined as –

1) 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 words 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.


It is 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,


A 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;


‘Sustainable Development Law’

The term ‘sustainable development law’ describes an emerging corpus of international legal principles and instruments which addresses the intersections between international economic, environmental and social law (including human rights law), towards development that can last for the present and future generations.


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 the 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.


Case

AWANG @ HARUN ISMAIL & 6 ORS v. KERAJAAN NEGERI KEDAH & 5 ORS [2010] 1 LNS 15 ZAMANI A RAHIM J


The state authority has no unfettered discretion in imposing conditions relating to development Case.


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) on imposing conditions was reviewed by the highest court and in concluding said that :

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 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


Proper Town Planning as a means of ensuring sustainable development

TOWN AND COUNTRY PLANNING ACT 1976 (Act 172)

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.)


Offences relating to unauthorized development

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;


TREE PRESERVATION ORDER

Tree preservation order under Section 35A.

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.

Replacement of trees under Section 35E and Prohibition to fell, tree with girth exceeding 0.8 meter under Section 35H is another protection accorded to preservation of natural surroundings


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.

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.


Uniform Building By-Law

By-laws.

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

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

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.


Cases

WONG KIN HOONG & ORS v. KETUA PENGARAH JABATAN ALAM SEKITAR & ANOR HIGH COURT MALAYA, KUALA LUMPUR [2011] 7 CLJ 1005 LAU BEE LAN J


PENDOR BANGER & ORS v. KETUA PENGARAH JABATAN ALAM SEKITAR & ORS HIGH COURT MALAYA, KUALA LUMPURMOHD ZAWAWI SALLEH J [2011] 1 LNS 788


KetuaPengarahJabatanAlamSekitar& Anor v. KajingTubek&Ors and other appeal [1997] 4 CLJ 253; [1997] 3 MLJ 23. GOPAL SRI RAM


Conclusion

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 legislatively intervene to ensure access to housing by the poor and at the same time ensuring sustainable housing development in the country.

 

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