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Hill-Slope Disasters (Part I)
04/08/2006 The Sun Law & Realty 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
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