When massive floods hit Taman Sri Muda in Shah Alam, Selangor, in December 2021, allegations surfaced of the area’s change in land use: the land was originally meant for water retention but was alienated to a property developer who allegedly did not backfill the land before building homes. In this article, we take a look at how homebuyers can conduct their due diligence on land use and drainage to ensure their property purchase is a sound one.
In Malaysia, land use zoning determines what a piece of land can be used for, namely residential, commercial or industrial. The current and planned land use within a town or city, including permissible development density, plot ratio and even green areas, are detailed in the local authority’s local plan such as the Kuala Lumpur City Plan (Pelan Pembangunan Kuala Lumpur) and Petaling Jaya Local Plan (Rancangan Tempatan Petaling Jaya).
In most cases, local councils would stipulate development standards that developers need to adhere to before they can build, among them putting in place proper infrastructures such as roads and drainage systems.
We talk to Datin TPr Hjh Noraida Saludin, President of the Malaysian Institute of Planners to obtain more information on land use zoning and drainage laws in Malaysia.
What should buyers know about Malaysia’s zoning, land use and development control law?
Zoning, more commonly known as land use zoning, refers to the planned and/or permissible use of land and is one of the key determinants in development control. The meaning of ‘land’, ‘use of land’, and ‘development’ are used within the context defined by the Town and Country Planning Act 1976.
The act, often referred to as Act 172, was introduced to ensure a uniform law and policy for the “proper control and regulation of town and country planning in Peninsular Malaysia”. The Federal Territories, Sabah and Sarawak have their own similar planning laws.
Land use zoning in each state is regulated through the development plans provided under Part III of Act 172 (covering Sections 7 to 17). They comprise a State Structure Plan (Rancangan Struktur Negeri) and a series of local plans or Rancangan Tempatan prepared for each district, municipal and city council in the respective state.
These plans are gazetted to become statutory documents for controlling and using pieces of land in Malaysia. The key reference for land use zoning is the local plan because it shows the proposed zoning – covering the existing and future land use for every lot of land registered within the local plan area. The local plan also contains proposals for the improvement, protection, conservation, and preservation of both the physical and natural environment, landscapes, improvement of communications and public utilities, waste disposal and management of traffic.
The public can refer to a relevant local plan to check for existing and permitted future land use of a particular area. Some local plans can be downloaded from the website of a state’s Town and Country Planning Department (now called PLANMalaysia), such as the Selangor Town and Country Planning Department (or PLANMalaysia@Selangor). Some local councils have links to their local plans on their websites, such as those of Petaling Jaya City Council (MBPJ) and Kuala Lumpur City Hall (DBKL). Shah Alam City Council (MBSA) went digital with their draft 2035 plans with a mobile app available on the Google Play store. The other option is to purchase the plans by contacting the Planning Department of the respective local councils.
The local plan provides the basis for planning control (Part IV, Act 172) of any ‘development’ and ‘use’ of land defined under Section 2 of Act 172. According to Section 18(1) under the Town and Country Planning Act, 1976 – No person shall use or permit to be used any land or building otherwise than in conformity with the local plan.
A local plan is prepared by a team of multi-disciplinary professionals, led by town planners, which include other professionals and specialists in urban design, landscaping, heritage conservation, environmental management, engineering, transport, agriculture, land valuation and organisational management. Some recent local plans also cover disaster risk management.
The plan preparation process involves a series of feedback and objections from public and stakeholder consultations; and a series of meetings with the technical and steering committees to obtain approvals at various stages of the plan preparation before it is tabled for final approval by the State Planning Committee.
The draft plan will then be displayed at the local council’s headquarters or on its websites, such as Kuala Lumpur Structure Plan 2040. During the public display period, homeowners and residents will be given some time to raise concerns and objections to the proposals in the draft local plan, usually via email or written feedback.
What happens when the public have any objections over a local plan?
The Town and Country Planning Act 1976 or Act 172 provides for objections and representations from the public – it is stated in Section 15 that the local planning authority should consider the objections and representations and proceed to submit the (modified) draft local plan to the State Planning Committee for its approval. This is a grey area that may need interpretation by the Court of law. Unfortunately, the law is silent on the matter of any objections and concerns that are not taken into account by the local planning authority.
The final decision rests in the State Planning Committee, or in the case of Kuala Lumpur the Minister as prescribed in the Federal Territory (Planning) Act 1952, who may, “…after considering a draft local plan submitted to it, either approve it, in whole or in part and with or without modifications or reject it.” In addition, it also allows the Committee to “…take into account any matters that it thinks are relevant, whether or not they were taken into account in the plan as submitted or resubmitted to it.”
Development Controls currently in place
Part IV of the Town and Country Planning Act 1976 (covering Sections 18 to 31A) provides for the planning control of development and use of land in Peninsular Malaysia. Planning permission is required before any development can commence, and any use of land or building must be in conformity with the local plan. The planning permission is obtained through the local council of the area where the land is located and must comply with the attached conditions.
The Development Control process (applying for planning permission) is spelt out in Part IV of Act 172. The land use guidelines for new developments are provided by the gazetted local plan (and the State Structure Plan). The Development Control process for Putrajaya and Labuan follows the provisions in Act 172, whereas in Kuala Lumpur it falls under the Federal Territory (Planning) Act 1982 (Act 267).
What are the zoning laws or land use practices that developers are supposed to adhere to when building a new housing development?
Any proposed developments are subject to compliance with the land use zoning in the respective local plans. Property developers must also comply with the approval conditions of the planning permission (or development order) set by the local authority for that particular development. These are statutory requirements and the local authority can act over non-compliance.
To get planning permission, all development proposals, particulars, layout plans and other documents must be prepared and submitted by qualified persons. The project proponents need to submit the development proposal report (LCP), which includes among others:
- the development concept and justification
- a location map and a site plan
- particulars of land ownership and restrictions, if any
- a description of the land including its physical environment, topography, landscape, geology, contours, drainage, water bodies and catchments and natural features thereon
- a land use analysis and its effect on the adjoining land
- an analysis of and mitigation for the social impact and other impacts
- layout plans
Landowners who want to change the land use (for example from industrial to commercial) would have to apply for planning permission to do so.
What are the drainage best practices for new housing developments in Malaysia?
The best practices for drainage in Malaysia are provided by the “Urban Stormwater Management Manual for Malaysia” (better known as MSMA), prepared by the Drainage and Irrigation Department (JPS, Jabatan Pengairan & Saliran). JPS also has a Drainage Master Plan as a guideline for drainage systems for a district or municipality. These documents are non-statutory.
Approval of drainage proposals for new developments in Malaysia follows three main stages:
Stage 1: Planning Approval (Planning Permission /Development Order Approval)
The drainage system for a new housing development is planned and designed at the early stage of planning approval by the appointed civil and structural engineer. The drainage system must comply with the existing guidelines from JPS and the engineering department of the local authority. These two agencies oversee the drainage system proposals as early as the planning permission application stage. Planning permission/development order cannot be granted without supporting letters from the two agencies endorsing the drainage proposal.
Stage 2: Infrastructure Plan Approval (Earthworks, Road & Drainage Plans)
After receiving planning approval, the infrastructure plan covering the earthworks plan, and road & drainage plan (R&D) are prepared by the appointed civil and structural engineer for approval by the local authority. The plans are forwarded to JPS and the local authority’s engineering department for approval before commencement of any infrastructure works (earthworks, road and drainage system) on site.
These approved plans also include a drainage system plan of the development site during the construction period.
Stage 3: Certificate of Completion and Compliance (CCC)
The final stage after all the infrastructure works is completed, but before vacant possession by purchasers, will require the issuance of certification by the appointed consulting engineer on a prescribed form that the development and construction are completed and have complied with all the approved plans and approval conditions. A Certificate of Completion and Compliance (CCC) must be issued before the properties are handed over to the purchaser. For more information do read Certificate of Completion and Compliance (CCC) in Malaysia: What you need to know
What should aspiring buyers ask developers or their local council about land use/planning before buying a home?
Homebuyers should ask the property developers or their local council whether the development complies with:
1) The prevailing gazetted local plan (local plans are reviewed and updated every five to ten years). Homebuyers should also refer to the land use zoning and accessibility of the property in question, the existing and proposed future development of surrounding areas, as well as the availability of public facilities, utilities, and amenities. A gazetted local plan can be purchased in hardcopy or softcopy from the local authority, and the land use for all land within their jurisdiction will be displayed on the maps in the plan.
2) The planning permission/development order (and its approval conditions), infrastructure plans, and Building Plan. Check the following information:
i. The approved layout plan in the planning permission to ensure that the actual layout of the development area complies with it. The developer and local council normally do not share these Approved Plans with the public, but they can be inspected by special request because these approved plans are public documents. The planning permission layout plan is a coloured indicative plan that shows the details and type of development components and land use.
ii. Infrastructure Plans (earthworks and road & drainage plan) show the earthworks that were done (including cut and filled areas), planned road network, and drainage alignment.
iii. Building plans show the details of the approved building design. The building plan approval is needed prior to the Certificate of Share Unit Formula (SiFUS, Sijil Formula Unit Syer) approval (for Strata Development), advertising permit for selling the properties, and landscape plan approval. Also, find out What is Schedule of Parcel and how to use share unit formula to calculate your maintenance fee?
What can homebuyers do if their completed project surroundings do not have satisfactory drainage/good land use planning?
A new development scheme would have gone through the processes of obtaining planning, infrastructure and building plan approvals. A good drainage plan will consider the existing environment around it. It should also comply with the drainage master plan that has been prepared for the district.
However, the surrounding areas, whether developed or undeveloped, are the responsibilities of the individual landowners.
Homebuyers can file a complaint with the local authority if there appears to be a non-compliance with the approved plans by the property developer. Details of channels to complain are typically displayed on the websites of respective authorities, such as MBPJ and DBKL.
For the surrounding areas, if it involves a public area, for example, a river or the main drain, then a report can be lodged with JPS or the local authority because these areas are maintained by the respective authorities or agencies.
If the land belongs to private landowners, homeowners can lodge a complaint/report to the local authority for their action or further investigation. JPS and local councils will not carry out any maintenance or improvement to the drainage system without the consent of the landowners.