All this while you have been made to believe that if the owner of land adjoining yours intends to develop his land, the local authority must notify you of the proposed development and give you the opportunity to make representations or objections to the proposal.

You have waited but the notice from the authority never came. Lately, however, you found out that the project had been approved. What can you do about it? Can you take the matter to court to quash the approval because you had not been given the opportunity to state your objections?

Such was the predicament of the plaintiffs in Leila Dulcie Allana Labroory & 9 Ors. V. Majlis Bandaraya Ipoh & Anor (1996) 1 AMR 695. The decision of the Judicial Commissioner in the case might come as a surprise to you.

The 10 plaintiffs had challenged the decision of the first defendant, the Ipoh City Council, to approve the plan by the developer from starting any construction work on the land.

Some of the plaintiffs later withdrew from the case, which nevertheless proceeded with the rest. During the hearing, both parties conceded the fact that none of the plaintiffs was given notice of the developer’s application for planning approval.

The plaintiffs contended that this failure of the Ipoh City Council made the planning approval “bad in law and null and void”.

According to the Judicial Commissioner, “As the backbone of their argument, the plaintiffs relied on section 21(6) of the Town and Country Planning Act 1976.” The question for the court was therefore whether the challenge by the plaintiffs had any merits or basis.

Section 21(6) is not difficult to understand. It states, in simple terms, “If the proposed development is located in respect of which no local plan exist for the time being, then upon receipt of an application for planning permission… the local planning authority shall, by notices in writing served on them, informed the owners of the land adjoining the land to which the application relates of their right to object to the application and to state their grounds of objection within twenty-one days of the date of service of the notice.”

In the course of the trial, the first defendant adduced into evidence gazette notifications made under the 1976 Act, which in effect clearly showed that there is already a structure plan for the area in question. Taking judicial notice of these gazette notifications, the learned Judicial Commissioner held that, for purposes of section 21(6) of the Act, there is already a development plan for the area.

Under section 2 of the Act (which is the Interpretation section), the term “development area” has been defined to mean, in relation to an area:
(a) the local plan for the area; or
(b) if there is no local plan, the structure plan for the area.
Since the Ipoh City Council had adduced clear evidence that a structure plan for the area in question had indeed been assented to by the State Authority and was duty gazetted, the Judicial Commissioner had no difficulty in dismissing the plaintiffs’ application.

In his judgment, the Judicial Commissioner said that the land in questions is located “ in an area in respect of which a development plan exists. As such the requirement of Notice under section 21(6) is not applicable.”

To sum up, your right to make representations or objections to a proposed development to be undertaken by your neighbour will depend on whether there is already a development plan for the area. This is the law for the whole of Peninsula Malaysia, where the 1976 Act applies.

However, if your neighbour’s land that is to be developed is in Kuala Lumpur, a different picture will emerge. For that, a separate article is necessary.