Resolving Disputes Arising from Land Development and Environmental Degradation in Malaysia: Proposals for Reforms

Abstract

Administrative dispute resolution and enforcement avenues in the environmental protection system are strictly restricted to persons aggrieved by the decision of the authorities. Similarly judicial avenues are also limited to individuals having interest in the action. This means that all other aggrieved or interested third parties and Non-Governmental Organizations (“NGOs”) will not be allowed to contest the planning decision. The question thus arises as to how would the third parties, who lack sufficient interest in the subject of the decision, could enforce a particular planning regulations or even try to redress environmental harm arising from a poorly planned land development activities. The point the writer is trying to emphasize is the importance of granting access to whoever seeks to redress any harm or injury arising from a poorly planned land development. This should equally apply to development projects, irrespective of whether such projects are undertaken by the government, private or corporations. Though the adjudicating body may or may not rule in favor of the party seeking to enforce a right in all the disputes brought before it, the fact remaining is that the planning body should be able to provide access to citizens and other interests groups to challenge the viability of any development. There should, therefore, be a wider scope of involvement on the part of citizens of a country in the planning of land use and development control.The desirability of involving the people in the development, implementation and enforcement of laws, regulations and policies must not only be said but must be actually realized. The prerequisite of a right to good land development practice that can deliver sustainable development is the ability to influence decisions; in other words, there is no right without a remedy. Modern legal writers have realized that access to justice encompasses not only traditional access to the courts but also access to administrative tribunals and even access to governmental decision making.This article examines the barriers posed to prospective litigants seeking to challenge the decision of the planning authorities, which had caused adverse impact on the environment or to prevent potentially damaging development. The writer tries to draw examples from other common law jurisdictions to explain the Malaysian position.