LOCAL AUTHORITIES & THE DUTY TO GIVE REASONS: TRANSPARENCY AND NATURAL JUSTICE IN PLANNING LAW

What is a Local Authority?

Local authorities assume a vital constitutional and administrative role in managing public municipal affairs across Malaysia. Under the Federal Constitution (Ninth Schedule, State List), local government falls under the legislative purview of the respective State Authorities.

Established primarily pursuant to the Local Government Act 1976 (Act 171), local authorities are tasked with maintaining public health, sanitary conditions, infrastructure amenities, and community welfare. Concurrently, under the Town and Country Planning Act 1976 (Act 172) (“TCPA”), local councils are vested with exclusive statutory powers to administer town planning and development control—ensuring balanced urban development and environmental sustainability for residents.

Does a Local Authority Have a Duty to Give Reasons to the Public?

Whether a public body is legally bound to furnish reasons for its planning decisions was authoritatively determined by the Federal Court in the landmark decision of Perbadanan Pengurusan Sunrise Garden Kondominium v. Sunway City (Penang) Sdn Bhd & Ors and Another Appeal [2023].

The Federal Court closely scrutinized Sections 21(6) and (7) of the Town and Country Planning Act 1976. These statutory provisions stipulate that where no local plan has been gazetted, the local planning authority must formally notify owners of neighbouring lands of an application for planning permission and afford them the statutory right to object.

The apex court ruled that although the TCPA does not contain an express provision explicitly commanding the delivery of reasons, public decision-makers are bound by a common law duty of fairness to give reasons for their decisions.

Why Reasons Are Essential: Legitimate Expectation & Preventing Nugatory Rights

The Federal Court articulated three key justifications why the duty to give reasons is imperative:

1. Preventing Statutory Rights from Becoming Nugatory:
   If a local council could reject adjoining owners’ objections without stating why, the statutory right of objection enacted by Parliament would be rendered completely illusory and meaningless.
2. Legitimate Expectation of Citizens:
   Residents have a legitimate expectation to know the factual and technical basis upon which local authorities approve major developments that directly impact their living safety, environmental amenity, and quality of life.
3. Enabling Effective Judicial Review:
   Natural justice mandates that affected individuals must be informed of the reasons for an administrative decision so they can ascertain whether the authority acted lawfully, rationally, and within its statutory jurisdiction—or whether grounds exist to challenge the decision via Judicial Review.

Justifying Deviations from Structure Plans (Hill-Slope Developments)

The general public legitimately expects local planning approvals to strictly comply with the gazetted Structure Plan and national environmental policies, particularly concerning environmentally sensitive areas such as hill lands.

While extraordinary circumstances may occasionally justify development deviating from general planning policy, the Federal Court held that it is paramount for the local authority to transparently explain and justify why public policy interests set out in the Structure Plan were overridden in favor of the developer.

Conclusion

While reasons provided by local authorities need not constitute exhaustive legal dissertations, they must be sufficient for affected stakeholders to understand the core rationale of the decision. The Federal Court’s judgment in Sunrise Garden Kondominium stands as a vital pillar for open governance, natural justice, and accountability—curtailing unfettered administrative discretion and upholding the rule of law in Malaysia’s town planning regime.

Disclaimer: This article is for informational purposes only and does not constitute formal legal advice. For specific inquiries regarding planning permissions, judicial review, or local government disputes, please contact Hasrina Hakimi Advocates & Solicitors directly.