FOLLOWING the Brexit referendum on June 23, 2016 where 51.9 per cent of the people voted for the United Kingdom to leave the EU (with 48.1 per cent against), UK made its official decision to leave the European Union. England voted for Brexit, and so did Wales. However, Scotland (together with North Ireland) voted to remain and that has a critical impact on some of its legislation. The majority of environmental legislation in the UK derives from the EU; withdrawal from the EU will result in a vacuum in existing environmental law.
I am therefore not surprised that the Scottish Parliament decided to have a new planning law tabled during its 2017-2018 session. Scottish leaders believe that a “clearer and more open view” of the country’s own town and country planning system must be found and adopted.
In April 2017, the UK Secretary of State, acting under the Town and Country Planning Act 1999, enacted the Town and Country Planning (Environment Impact Assessment) Regulations 2017. The regulations were laid before Parliament on April 19 and came into force on May 16, 2017. Containing 76 regulations spread out in 12 Parts with four Schedules, the new law applies to England only (not to Scotland and Wales). Regulation 3 states clearly that “The relevant planning authority, the Secretary of State or an inspector must not grant planning permission or subsequent consent for Environmental Impact Assessment (EIA) development unless an EIA has been carried out in respect of that development”.
I spoke on this new legal development in UK recently with my friends in the planning profession. I told them that if such a regulation is in force in this country (it could be made under Section 59 of our Town and Country Planning Act 1976, TCPA), a tragedy as had happened in Penang in late October 2017 could have been avoided. Not all of my friends agree.
In that tragedy, a massive landslide occurred at a Tanjung Bungah Penang housing development site, killing 11 people. The day after the incident occurred, Majlis Bandaraya Pulau Pinang (MBPP) then Mayor Maimunah Shariff told reporters that the hillside housing project was approved by the local authority’s One Stop Centre because the developer had complied with the state’s “Safety Guideline for Hillsite Development 2012”. When Penang executive councillor Chow Kon Yeow was asked why approval was given despite objection by the Department of Environment (DoE), he replied that “DoE does not have the authority to decide on applications for planning permission submitted by developers. The authority lies with MBPP”.
Whilst it is true that guidelines (unlike regulations) do not have the force of law, a law is only good if there is full compliance (by the relevant parties), ensured by effective enforcement and sanctions (in cases of breach). We should consider enacting such a subsidiary legislation under our TCPA.
Similar developments had taken place in other jurisdictions. In New South Wales, Australia, a new Environmental Planning and Assessment Amendment Act 2017 was enacted in November 2017. Scheduled to come into force on March 1, 2018, the new Act contains substantial changes to its predecessor, the Environmental Planning and Assessment Act of 1979.
Under the 1979 Act, the term “development” has been expressly defined to mean “the use of land, the subdivision of land, the erection of a building, the carrying out of a work, the demolition of a building or work, any other act, matter or thing that may be controlled by an environmental planning instrument”. It should be noted that the term “development” has been defined differently in our TCPA.
A quick reading of the NSW 2017 Act shows 10 specific objectives intended to be achieved by the new law, some of which are to:
— Facilitate sustainable development by integrating economic, environmental and social considerations in decision-making about environmental planning and assessment,
— Protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,
— Promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),
— Promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, and
— Provide increased opportunity for community participation in environmental planning and assessment.
A former colleague in academia reminds me that a new Environmental Protection Act (EPA) will be tabled in the Dewan Rakyat this year. He said that Natural Resources and Environment Minister Datuk Seri Wan Junaidi Tuanku Jaafar had told the media last year that such a new law is necessary to empower the government to “better manage the environment”. I explained to my colleague that the EPA is intended to replace the 1974 Environmental Quality Act 1974 (EQA) – which is a general law on environmental protection and is not specifically focused on EIA issues in granting planning permissions under TCPA. We need something along the lines of the new law in New South Wales.
As we consider various options for our own future environmental planning law, the recent developments taking place in UK and New South Wales deserve a closer look. Even the old Planning and Environment Act 1987 of Victoria (with its supporting Regulations in 2005) merit a further study.
Experts tell us that environmental planning has three components — hardware (urban structure, land use), software (social systems, laws, regulations) and heartware (environmental awareness and ethics). Effective environmental planning requires the interaction and overlay of these three components.
The writer formerly served the Attorney-General’s Chambers before he left for practice, the corporate sector and, then, the academia