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KYB Case Update: Selangor Appeal Board Allows Continuing Operation of a Child Care Centre

Updated: Aug 7, 2023

Introduction


This Case Update discusses an appeal against the decision of the local planning authority. Any party aggrieved by such a decision may lodge an appeal to an appeal board constituted under the Town and Country Planning Act 1976 ("Act"), which is vested with the jurisdiction to hear and consider such appeals.


On 12.05.2022, the Selangor Appeal Board in the Appeal No. LR SEL.(510)MPAJ/01/2021 between British Montessori Child Care Centre ("Child Care Centre"), Majlis Perbandaran Ampang Jaya ("Local Authority”) and (1) En. Muhammed Rizal Bin Abdul Aziz; (2) Zariah Binti Hashim and (3) Raja Badrina Binti Raja Badrol (“Neighbours”) allowed the Child Care Centre to continue operating for a further three (3) years under the planning permission issued by the Local Authority as opposed to a validity period of six (6) months initially decided by the Local Authority.


This Case Update shall highlight some key aspects of the Grounds of Judgment of the Selangor Appeal Board dated 09.03.2023 as reported in British Montessori Child Care Centre v Majlis Perbandaran Ampang Jaya (En Muhammed Rizal Bin Abdul Aziz Dan Lain-lain, Pencelah) [2023] MLJU 1266.


Material Background Facts


In 2015, the Child Care Centre applied to the Local Authority for the temporary conversion of a bungalow ("Building") from a residential home to a child care centre and successfully obtained the very first planning permission from the Local Authority to use the Building as a child care centre for a period of three (3) years, notwithstanding objections raised by the owners of the neighbouring lands ("Neighbours") against the Child Care Centre’s application ("1st Planning Permission").


In 2018, the Child Care Centre also successfully applied for a renewal of the 1st Planning Permission to continue using the Building as a child care centre from the Local Authority for a further period of three (3) years, whereby the Child Care Centre obtained the renewed planning permission from the Local Authority ("2nd Planning Permission").


At all material times, the Child Care Centre conformed and complied with all relevant conditions stated in the 1st Planning Permission and the 2nd Planning Permission.


On 25.01.2021, the Child Care Centre further submitted to the Local Authority an application to extend the 2nd Planning Permission to maintain the use of the Building as a child care centre. However, on 29.09.2021, the Child Care Centre received a letter from the Local Authority stating that the Neighbours once again objected against the use of the Building as a child care centre and that a briefing session shall be held at the Local Authority’s office to be attended by the Neighbours and the Child Care Centre.


On 12.10.2021, the Child Care Centre received a letter from the Local Authority stating that the Local Authority had approved the Child Care Centre’s application on the extension to maintain the use of the Building as for purposes of a child care centre for a period of two (2) years ("3rd Planning Permission").


However, on 18.10.2021, the Child Care Centre received another letter from the Local Authority, stating that the 3rd Planning Permission was revoked due to an error, period of which was revised to six (6) months. This letter also purported to clarify that the 3rd Planning Permission constitutes the final approval to be granted to the Child Care Centre.


Dissatisfied with the validity of the 3rd Planning Permission, the Child Care Centre filed a notice of appeal to the Selangor Appeal Board on 10.12.2021 against the decision of the Local Authority.


The Relevance of the Objections Raised By The Neighbours


The Selangor Appeal Board held that Section 21(6) of the Act is clear where it provides that the owners of the neighbouring lands of a proposed development are entitled to object to the application for planning permission and to state their grounds of objection only where the proposed development is located in an area in respect of which no local plan exists for the time being. In the present case, there was a local plan which is in force at the material time during the Child Care Centre’s application for a renewal of the 2nd Planning Permission ("Local Plan"), which specifically allowed for the operation of a child care centre in a residential building.


Accordingly, the Selangor Appeal Board held that the objections raised by the Neighbours, i.e. that the Child Care Centre allegedly caused health related issues, disruptions with everyday life, the depreciation of value of property and traffic congestion, were invalid and could not be taken into consideration by the Local Authority under Section 21(6) of the Act in approving the 3rd Planning Permission.


The Neighbours also sought to refer to the Garis Panduan Penubuhan Tadika Dan Taska (2017) ("Guidelines") which states that the Local Authority, when determining whether to grant a planning permission to the Child Care Centre is subject to the Guidelines which provides that a kindergarten/nursery is required to obtain prior approval from the owner or the residents of bordering lands located within a 20 metre radius. As such, the Neighbours argued that the Child Care Centre failed to obtain the prior approval of the Neighbours and that the Local Authority was entitled to refer to the Guidelines when considering the Child Care Centre’s application for planning permission.


Given that there was already a Local Plan in force, the Selangor Appeal Board similarly took the view that the objections raised by the Neighbours under Guidelines were invalid as the Guidelines only serve as an administrative guide and cannot override the statutory provisions laid under Section 21(6) of the Act.


Although the Selangor Appeal Board, in its own words, determined that the objections raised by the Neighbours were "invalid", the process of allowing the Neighbours to raise objections can nevertheless be conducted by the Local Authority for good governance to maintain the social interest and well-being of the residents. That said, the Selangor Appeal Board held that the Local Authority cannot reject an application for planning permission outright simply based on the objections raised by the Neighbours and the Local Authority may only refer the objections raised for purposes of imposing conditions which are reasonable in the planning permission. It was also determined that the Local Authority is required to carry out its independent investigations in relation to the objections raised.


Conditions imposed by the Local Authority


Pursuant to Section 22(3) of the Act, the Local Authority may grant planning permission either absolutely or subject to such conditions as it thinks fit to impose, or refuse to grant planning permission.


Notwithstanding the above, the Selangor Appeal Board invoked the principles outlined by the Federal Court in Pengarah Tanah Dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn. Bhd. [1978] 1 LNS 143 where the four important principles were:-


1. the approving authority does not have an uncontrolled discretion to impose whatever conditions it likes.


2. the conditions, to be valid, must fairly and reasonably relate to the permitted

development.


3. the approving authority must act reasonably and planning conditions must be

reasonable.


4. the approving authority is not at liberty to use its power for an ulterior object, however desirable that object may seem to it in the public interest.


The Selangor Appeal Board also referred to Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1 where the Federal Court had to decide whether it was permissible for a planning authority to impose a planning condition relating to the price of affordable housing and applied the following tests:-


(a) they must be imposed for a planning purpose and not for an ulterior motive;


(b) they must fairly and reasonably relate to the development permitted; and


(c) they must not be perverse ("so unreasonable that no reasonable authority could have imposed them")


The Selangor Appeal Board further determined that the objections raised by the Neighbours in this present case can only serve as an indication as to the issues which would arise from the planning permission and cannot be the underlying factor for a rejection of an application for planning permission. It is subsequently for the Local Authority to impose reasonable conditions to address those issues.


The Local Authority’s Decision To Grant A Mere Six (6) Months Equivalent To A Rejection


The Selangor Appeal Board referred to Section 24(1) of the Act which provides that a planning permission granted shall, unless extended, lapse twelve (12) months after the date of the grant thereof, if within that time, the development had not commenced in the manner specified in the planning permission. The Selangor Appeal Board further took the view that the expiry period of twelve (12) months (although not expressly stated under Section 24(1) of the Act) applies to both a permanent or a temporary planning permission.


As such, the Selangor Appeal Board opined that the validity of a planning permission should at the minimum be a period of at least twelve (12) months and decided that the Local Authority’s decision to grant a mere six (6) months amounted to a rejection of the application for planning permission.


Key Takeaways


The pertinent points to be taken away from this decision of the Selangor Appeal Board are as follows:-


  • If an application for planning permission is rejected by a local authority, it is not all doom and gloom as there is an avenue for an appeal at the relevant appeal board;

  • Where a local plan already exists, it is not open for a local authority to reject an application solely premised on objections raised by neighbours or owners of the adjacent lands; and

  • Whilst the local authority may have the power to impose such planning conditions as they think fit, such conditions may be challenged if the conditions imposed are unreasonable or contradictory with positions in law.

Our team comprising of Edward Kuruvilla & Benjamin Chia successfully represented the Child Care Centre in the above proceedings. The full Grounds of Judgment may be accessed at British Montessori Child Care Centre v Majlis Perbandaran Ampang Jaya (En Muhammed Rizal Bin Abdul Aziz Dan Lain-lain, Pencelah) [2023] MLJU 1266.


Neither the Local Authority nor the Neighbours have initiated an application for judicial review against the decision of the Selangor Appeal Board.


This article is authored by Benjamin Chia who leads the Firm’s Projects and Real Estate practice group. For more information, please feel free to contact Edward Kuruvilla at edward@kyblegal.com or Benjamin Chia at benjamin@kyblegal.com or visit their respective profiles at www.kyblegal.com.


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KYB Case Update - Selangor Appeal Board Allows Continuing Operation of A Child Care Centre
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