Failing to plan

MUCH of the controversy in relation to the Lynas Advance Materials Plant in Gebeng (Lynas), Kuantan, could have been avoided had the Kuantan City council (MPK) conducted public dialogues or stakeholder discussions under Local Agenda 21 before granting planning approval under the Town and Country Planning Act 1976 (TCPA 1976).

Certainly many of the issues raised by persons opposed to Lynas, such as the lack of a safe permanent site for the disposal of radioactive waste or the danger of the plant or its products/waste to public health as well as the lack of environmental assessment could have been brought to the attention of MPK and the government earlier so these issues could be addressed before approval was given.

The resultant failure is that the government is now faced with a public relations nightmare of trying to address issues raised after approval have been given and in some cases trying to defend issues not addressed at all.

The process of stakeholder discussions under the Local Agenda 21 is practised by the Petaling Jaya City Council (MBPJ). When the law does not require the same to be held (the law requires only neighbouring land owners the right to object and in cases where there is a local plan there is no right to object) MBPJ frequently allows residents and ratepayers the opportunity to make representations in relation to any development within 21 days of a signboard being placed on the development site instructed by the Local Authority which is done in most developments.

Certainly in bigger projects, the relevant members of Parliament, state representatives and community leaders are encouraged to make representations and are allowed access to all documents and invited to attend the One Stop Centre (OSC) meetings where the decision is made.

In some cases even residents who are affected are given access to the main documents submitted by an applicant to a development. This is primarily done to enable the local authority through the OSC to be appraised of all relevant considerations before granting planning permission under Section 22 (3) of the TCPA 1976. In fact Section 22(2) of the TCPA 1976 requires the local authority, as far as practical to take into consideration such matters as are in its opinion expedient or necessary for proper planning and in particular. Regrettably this was not done in Lynas.

Be that as it may, MPK is still under a legal duty to ensure it’s granting of planning approval for Lynas is reasonable and proper. Section 19(1) of the TCPA 1976 prohibits any development without planning permission. Planning permission has to be applied under Section 21 of the TCPA 1976.

The applicant must submit a development proposal report under Section 21A before any approval can be granted. This report must contain the development concept and justifications, the effect of this development on the surrounding area and the basis of this development consistent with the government policy in the national and state structure plans.

The local authority must also consider all considerations before granting approval and also is under a duty consistent with its general duties under Section 101(v) of the Local Government Act 1976 to do all things necessary for or conducive to the public safety health and convenience.

It is therefore critical the MPK should have determined the final storage site of the waste and evaluated the suitability of allowing it to be stored temporarily or permanently at the development land or in any area within the jurisdiction of MPK.

Certainly these matters should be addressed in the development impact proposal report or any other documents and should be made available to the public. This is because the storage of this waste will involve “development” as defined under the TCPA 1976.

It would therefore not be correct to grant a planning approval without these matters being addressed by the applicant to the satisfaction of the local authority as it may involve storage of pohazardous waste on land within the local authority’s jurisdiction.

To say that these matters can be left as a condition or based on an undertaking by the applicant would be wrong. So too would it be incorrect for the local authority to leave these matters solely in the hands of the Atomic Energy Licensing Board as TCPA 1976 has given the power to the local authority to grant planning approval.

The claims that even Australia would not allow these wastes to be stored there or that Malaysia should not be made the dumping ground of Australian radioactive waste would certainly be resolved had these matters being addressed comprehensively before planning approval had been granted at a public forum.


The writer is a Petaling Jaya councillor and planning law expert. feed[email protected]