Negotiating development as an alternative mechanism in fostering sustainable development in Malaysia: A legal and planning issues

The concept of negotiating development has brought changes to the nature of land use planning system. Negotiation has been defined as `to try to reach an agreement or to settle a dispute by formal discussion'. For the purpose of this paper it refers to the practice of negotiating planning agreements between developers and the local planning authorities in regulating land use development. As contrary to the traditional system of command and control approach, negotiating development will only be concluded upon agreement reached by both parties. Thus, there is greater likelihood that developers will comply with the element of development control as stated in the agreement. This concept is not new. The mechanism to control development through planning agreement has long been established in the United Kingdom and Australia. Apart from that, planning agreement is also used to avoid uncertainties in the development plan and it is used as means to procure planning gains. The recognition and the process of adapting this mechanism have been discussed in depth by renowned scholars of planning law. However, its application in Malaysia has not been validated by any literature. Nonetheless, several decided cases have shown that the concept of negotiating development has been practices indirectly in Malaysia. Therefore it is the intention of the writer to discuss the legal aspect of negotiating development as an alternative mechanism to foster sustainable development in Malaysia. The present scenario of development control under the purview of the Town and Country Planning Act 1976 (TCPA 1976) and significant planning issues will be highlighted.