WHAT IS A LOCAL AUTHORITY?
Local authorities assume an extremely important role in the administration of local authority areas. A local authority is a unit within the system of local government and is established to manage its affairs. The local authorities are vested with wide discretionary powers by the empowering legislation so as to enable it to manage the local authority area’s planning and development control matters for the principal purpose of ensuring comfort for the residents.
Local government is a matter listed in the State List, thus empowering the State Authorities to organise local governments and municipal services. Local governments established under the Local Government Act 1976 (Act 171) are primarily responsible for health, sanitary condition, amenities and the general well-being of the residents, and administration of matters relating to land planning and development control by the powers conferred by the Town and Country Planning Act 1976 (Act 172) (“TCPA“). The administration of the planning system and development control is within the exclusive powers of the state and local governments despite of their relying heavily on the Federal government for funds and other resources.
DOES A LOCAL AUTHORITY HAVE THE DUTY TO GIVE REASONS TO THE PUBLIC?
The obligation of a local authority to provide reasons for its decisions was addressed in the Federal Court’s decision of Perbadanan Pengurusan Sunrise Garden Kondominium v Sunway City (Penang) Sdn Bhd & Ors and Another Appeal [2023] 2 MLJ 621.
The Federal Court began by scrutinising Sections 21(6) and (7) of the TCPA which provides that where there is no local plan, the local authority shall inform owners of neighbouring lands of their rights to object to an application for planning permission and the local authority shall hear these objections.
The Federal Court found that the right to be heard accorded under Sections 21(6) and (7) of the TCPA is substantive in nature where the objections must not only be heard but be considered and weighed. The right to be heard should not be literally interpreted as just having one’s objection “heard” – but rather the objections should be heard and disposed of or resolved.
Although the TCPA did not expressly stipulate so, public bodies have a duty to give reasons for their decisions. If there is no duty on the local authority to provide reasons, then the statutory rights of these neighbouring land owners under the said provisions of the TCPA will be rendered nugatory. Furthermore, these neighbouring land owners have a legitimate expectation as citizens to know how important decisions which could potentially affect the quality of their lives, such as in this case, were reached. This is turn would also promote transparency in the decision-making process of the local authority under the TCPA.
CONCLUSION
This decision sets a clear reminder to public bodies that important decisions have to be properly considered and reasoned. In short, a common law duty of “fairness” inherent in the statute gives rise to an obligation to give reasons for an administrative decision. It also enabled an affected individual to then challenge the legality of that decision. Natural justice requires reasons be given to such decisions, notwithstanding the absence of any express provisions in statutes requiring these bodies to do so. The giving of reasons ensures that the decision maker has given sufficient and careful consideration to the sensitive matters involved here. This is in line with the general expectation of the public that local authority decisions will comply with the local structure plan and with national policy in relation to hill lands. While in certain circumstances development which deviates from the general policy may be required and to that extent is not aberrant or irrational, it will remain important for the decision maker namely the local authority to explain or justify the decision, in terms of why such development should override the policy interests set out in the Structure Plan.
Although the judgment did not go into length as to how detailed these reasons have to be, it was held that persons affected by the public body’s decision must be able to comprehend why such decisions were reached and ascertain whether it was made lawfully. The Federal Court’s decision reinforces the importance of transparency in the decision-making process of public bodies, to curtail any abuse of power.