In order to help deal with urbanization requirements in the developing area, It has great abilities in solving land-use problems in urban areas when new and readjusted urban settlements are needed. Providing urban land development process many land readjustment implementations have been practiced in Malaysia.
Many countries in Europe such as the Netherlands, Germany, etc, land readjustment program is an integral pan of general economic planning. The program usually involves total reconstruction of the areas to provide a better living condition for farming population and maintenance social vitality in rural areas.But in Malaysia, now it is a better way to readjust land use in urban areas for upgrading kampungs. The objectives of this thesis are to develop a method for land readjustment and reallocation for the optimal land use and it can be applicable in Malaysia by incorporating additional constraints or goals such as best land management, social, economic and environmental. The result of the implementation should provides best use of land based on certain criteria such as kampung wishes, land management, environmental, economical, social, and land management.
Key Word
Kampung, Public Participation and Land Readjustment.
1.Introduction
Kampung
--- In Malaysia, the term kampung (sometimes spelling kampong) in the English language has been defined specifically as "a Malay hamlet or village in a Malay-speaking country".[In other words, a kampung is defined today as a village in Brunei, Indonesia or Malaysia. In Malaysia, a kampung is determined as a locality with 10,000 or fewer people. Since historical times, every Malay village came under the leadership of a penghulu (village chief), who has the power to hear civil matters in his village (see Courts of Malaysia for more details). A Malay village typically contains a "masjid" (mosque) or "surau" (Muslim chapel), paddy fields and Malay houses on stilts. Malay and Indonesian villagers practice the culture of helping one another as a community, which is better known as "joint bearing of burdens" (gotong royong), as well as being family-oriented (especially the concept of respecting one's family [particularly the parents and elders]), courtesy and believing in God ("Tuhan") as paramount to everything else. ---
And Kampung in the urban area is so special.it is not a original village any more.
2.Land Readjustment
Land Readjustment (also known in other countries as land consolidation or land pooling) is an alternative method of land development, where a group of land parcels were developed haphazardly and were left out from its rapid surrounding development are being rearranged to provide adequate basic amenities and public facilities through the cooperation and agreement of landowners.
2006 Jabatan Perancangan Bandar Dan Desa Semenanjung Malaysia
3.Characters of Land Readjustment
- Urban development with existing land use
- Fair distribution of Land use
- Public Puticipation by Landowners and people who are living
- Fair developing Process
- Land Value Increasing
4.Benefits of Land Readjustment
As mentioned above, LR is a powerful tool in the urban land development process. Besides
improving land utilisation for government, it is also a significant method for landowners to
economically improve in land use. The benefits of LR, for both landholders and government, can
be outlined as follows:
Benefits for landowners
• After the project, land values increase very rapidly and land becomes more valuable. This provides
an economical gain to the landowners,
• Because of LR project affects landowners in the same way, disputes about land planning are reduced,
so that the problems which are created by the zoning plan are eliminated,
• A cadastral parcel is re-shaped and transformed into a sufficient site lot that can be used in an
economic way,
• Boundary conflicts are also minimised between landowners, due to re-organisation of land parcel
boundaries,
• Fragmented small parcels are consolidated into a new housing parcel. Landowners, therefore, can
get an opportunity to use of their land more actively,
• At the end of the project, basic public services are supplied to new lots by municipalities, therefore
LR project brings new social services to the project area,
• There is no extra charge to landowners for the project expenses, except that they forfeit part of their
land. All project expenses are met by the municipalities.
Benefits for the government
• The expanded urban land project areas can be achieved rapidly using LR,
• Compensation expenses are greatly reduced. This positively affects the use of the municipality
budget in other land development activities,
• Provision of public land is accomplished economically,
• A zoning plan is realised in a short time,
• The existing cadastral records are updated, reorganised and cadastral administration is improved,
• A regular land development process is provided.
5. Kampung Improment Program(KIP)
6. Land Readjustment and Case study in Malaysia
2003 Kajian Kemungkinan Pengunaan Konsep Land Readjustment Dalam Memajukan Kampung Baru Kuala Lumpur
7. Land Readjustment VS Land Acquisition
But in urban development, there is also another method to develop. it is called Land Acquisition.
Let us see the difference between Land Acquisition and Land Readjustment by Lots Map.
Land Acquisition
7.Summary
In my view, because a sustainable urban development cannot usually be reached within the existing plot boundaries, it often requires a total change in the situation of the land ownership.Because of very different requirements of the individual landowners.
Many countries use classic instruments like compulsory purchase or expropriation for urban
development. But those instruments often cause the resistance of the landowners who do not
want to lose their plots. Those effects might fail in the sustainable urban development. Some actual case studies show the benefits of this win-win strategy in European Countries, China and Japan. The land value increase will be increasing. And a relationship between landowner and municipality can be reached.
There is no Money Problems for the municipalities, because they do not have to buy and pay the original plots. Because land readjustment is just a plot exchange method. In addition there will be no land purchase tax neither for the landowners nor for the municipalities in land readjustment project. The land readjustment method can be implemented for urban development as well as for urban redevelopment projects.
References
Doebele, W.A.,1986 “Conceptual Models of Land Readjustment”, In Minerbi, L. et.al., ed., Land
Readjustment: The Japanese System, A Lincoln Institute of Land Policy Book, Boston, USA
Seele, W.,1992 “Land Readjustment In The Republic of Germany”, In Doebele, W.A., ed., Land
Readjustment: A Different Approach To Financing Urbanization, Lexington Books
Nik Yusof, N.MZ. 1997. An overview of land law and land administration in Peninsular
Malaysia. CAP National Conference on Land: emerging issues and challenges
ALMEC Corporation, 1995: The feasibility study on the introduction of land readjustment in Malaysia. ALMEC Corporation in collaboration with the Japan Association of Land Readjustment. Final Report, Kuala Lumpur.
2006 Jabatan Perancangan Bandar Dan Desa Semenanjung Malaysia
Jabatan Perancangan Bandar dan Desa 1995 Land Readjustment in Malaysia - Citizen Participation in National Development. Langkawi:Kedah
Seow Phei Shan 2003 Kajian Kemungkinan Pengunaan Konsep Land Readjustment Dalam Memajukan Kampung Baru Kuala Lumpur
Mohd Shahro Bin HJ Mat Zin 2007 Kesesuaian Pendekatan Land Readjustment Dalam Menyusun Semula Kampung, Kampung Batu Belah Klang
LAND ACQUISITION
Land acquisition involves the compulsory taking of land, often against the will of the landowners. The law in Malaysia requires the state to pay compensation adequately; however, adequate compensation is not defined in the statute. Historically, the courts seem to have succumbed to the pretense that the adequacy requirement may be achieved by giving sufficient monetary rewards in exchange. The questions are what monetary quantum is appropriate to constitute the constitutional mandate of adequate compensation; what should be the measure of compensation; what makes compensation adequate, and what are the tests of adequacy? A questionnaire survey was conducted among practicing valuers to discern their views with regard to the above issues. This survey revealed the views that compensation attributes under the stipulated laws are not adequate to fulfill adequate compensation notion under the spirit of Article 13 of Federal Constitution 1957. There is a need to review the heads of compensation structures by incorporating other countries practices such as payment of solatium or premium as over and above total compensation. Most of the valuers believed that land acquisition need not necessarily present the best alternative for the government to secure land for development.
Keywords: Land acquisition, adequate compensation, compensation structure.
INTRODUCTION
In Malaysia, federal, state, local governments and public authorities are vested by statute with the power to acquire land. The law of land acquisition is principally concerned with the rules governing the procedure to be followed in acquiring the land by compulsory means and with the awarding of compensation to the dispossessed landowner. Here, property is acquired by the state against the will of the landowner, but this can be done in the public interest and not in private interest (Brown, 1991). Eminent domain does not permit taking property of A and giving it to B to confer benefit on him. It also does not permit taking away property without just compensation. It is not eminent domain but expropriation, and this is illegal (Jain & Xavier, 1999).
The land acquisition statutes also provide that a dispossessed landowner shall receive compensation for the loss of the resumed land. According to Rowan-Robinson and Brand
326 Pacific Rim Property Research Journal, Vol 12, No 3
Keywords: Land acquisition, adequate compensation, compensation structure.
INTRODUCTION
In Malaysia, federal, state, local governments and public authorities are vested by statute with the power to acquire land. The law of land acquisition is principally concerned with the rules governing the procedure to be followed in acquiring the land by compulsory means and with the awarding of compensation to the dispossessed landowner. Here, property is acquired by the state against the will of the landowner, but this can be done in the public interest and not in private interest (Brown, 1991). Eminent domain does not permit taking property of A and giving it to B to confer benefit on him. It also does not permit taking away property without just compensation. It is not eminent domain but expropriation, and this is illegal (Jain & Xavier, 1999).
The land acquisition statutes also provide that a dispossessed landowner shall receive compensation for the loss of the resumed land. According to Rowan-Robinson and Brand
326 Pacific Rim Property Research Journal, Vol 12, No 3
(1995), the purpose of compensation is to compel the owner to sell the right (in monetary terms) as though the land owner is in the same position as if his land had not been taken. In other words, the landowner gains the right to receive a monetary payment not less than the loss imposed on him in the public interest, but, on the other hand, no greater. The underlying theme in the compensation provisions of the land acquisition statutes is to ensure that a dispossessed landowner is no worse off and no better off as a result of his eviction (Brown, 1991). This paper presents a study conducted via questionnaire survey amongst practising valuers in Malaysia. The survey investigates land acquisition issues and explores perspective of valuers regarding land acquisition implementations in Malaysia. The survey emphasised the payment of adequate compensation to dispossessed landowners.
LAND ACQUISITION IN MALAYSIA
Land is acquired in Malaysia under the Land Acquisition Act 1960. This is a serious encroachment on the right to property by legislation, although the fact remains that over a period of time, the law has been liberalized in certain aspects (Brown, 1991; Jain & Xavier, 1996). Nevertheless, there are still some aspects of the law which need to be modified (Jain & Xavier, 1996). Land acquisition and compensation matters are therefore entirely creatures of statute (Xavier, 2001). Historically, the courts have declared that the requirement may be satisfied by expressing adequate compensation in terms of money. The problem then is to find out, how much money is required to meet the constitutional mandate that adequate compensation be paid? To solve this problem, practitioners rely upon the concept of market value that is also provided under the laws of compulsory acquisition.
The law requires in any acquisition of land that the State Authority pay adequate compensation. The term ‘adequate compensation’ is not defined. It is totally abstract; it has no meaning from a practical standpoint, unless it is related to something which has a concrete value (Graham, 1984 in Khong, 1996). Market value and adequate compensation are not defined in acquisition laws, neither has it been contended that adequate compensation and market value are the same thing. Obviously, in some cases they are not, rather the idea is that market value is the best method of satisfying the requirement that adequate compensation is paid. The idea is sound and it works well in practice (Khublal, 1994 in Khong, 1996). Therefore, it is the desire of the state to give adequate compensation based only on market evidence, and if each party involved in land acquisition will act in accordance with professional ethics, honesty and integrity, the objective of arriving at adequate compensation will be achieved based on market value (Khublal, 1994).
Dundas & Evans (2001) stated that the compensation on the market value basis is considered to be satisfactory; however, there is a feeling that an additional payment, probably a percentage of the value, should be paid to all property owners or, perhaps, only to a restricted category, such as owners/occupiers. Epstein (1998) acknowledges that
Pacific Rim Property Research Journal, Vol 12, No 3 327
LAND ACQUISITION IN MALAYSIA
Land is acquired in Malaysia under the Land Acquisition Act 1960. This is a serious encroachment on the right to property by legislation, although the fact remains that over a period of time, the law has been liberalized in certain aspects (Brown, 1991; Jain & Xavier, 1996). Nevertheless, there are still some aspects of the law which need to be modified (Jain & Xavier, 1996). Land acquisition and compensation matters are therefore entirely creatures of statute (Xavier, 2001). Historically, the courts have declared that the requirement may be satisfied by expressing adequate compensation in terms of money. The problem then is to find out, how much money is required to meet the constitutional mandate that adequate compensation be paid? To solve this problem, practitioners rely upon the concept of market value that is also provided under the laws of compulsory acquisition.
The law requires in any acquisition of land that the State Authority pay adequate compensation. The term ‘adequate compensation’ is not defined. It is totally abstract; it has no meaning from a practical standpoint, unless it is related to something which has a concrete value (Graham, 1984 in Khong, 1996). Market value and adequate compensation are not defined in acquisition laws, neither has it been contended that adequate compensation and market value are the same thing. Obviously, in some cases they are not, rather the idea is that market value is the best method of satisfying the requirement that adequate compensation is paid. The idea is sound and it works well in practice (Khublal, 1994 in Khong, 1996). Therefore, it is the desire of the state to give adequate compensation based only on market evidence, and if each party involved in land acquisition will act in accordance with professional ethics, honesty and integrity, the objective of arriving at adequate compensation will be achieved based on market value (Khublal, 1994).
Dundas & Evans (2001) stated that the compensation on the market value basis is considered to be satisfactory; however, there is a feeling that an additional payment, probably a percentage of the value, should be paid to all property owners or, perhaps, only to a restricted category, such as owners/occupiers. Epstein (1998) acknowledges that
Pacific Rim Property Research Journal, Vol 12, No 3 327
restrictions on the rights of others often serve as a form of implicit, in-kind compensation. For example, zoning restrictions in a residential neighbourhood may be justified by the average reciprocity of advantage received by residential landowners. A study in Aberdeen (RICS, 1995; Rowan-Robinson et al, 1995) also recommends that a supplement should be paid. If the compensation were seen to be more generous, it could be possible to present compulsory purchase positively to the extent that, if it were sufficiently high, owners/occupiers might welcome compulsory purchase.
The meaning of adequate compensation has different interpretations in different countries. In United States, the market value of the subject property is generally held as just compensation for the dispossessed owner (Eaton, 1995). In UK, compensation is based on the principle of value to owner that is made up of market value together with other losses suffered by the claimant (Denyer-Green, 1994). This principle is broadly followed in most Commonwealth countries and regions such as Australia (Rost & Collins, 1984) and Hong Kong (Cruden, 1986). In China, the current compensation laws are far from adequate, due to the just terms compensation principle not being in place, and has caused great discontent (Chan, 2003).
Usilappan (1997, 2000) concerned payment of fair, equitable and just compensation to the affected owners. The Constitution required payment of adequate compensation and the Act provides for market value and other damages and, though these appear equitable in law, in practice the landowners still suffer. Various amendments to the Act provide the landowners lesser compensation such as compensation on planned use, relocation hardships and business losses. Most jurisdictions have done away with betterment, but in Malaysia the betterment clause is still in the Act (Buang, 2001; Usilappan, 2000; Xavier, 1999).
Based on the above discussions and the current attributes of compensation under laws of land acquisition in Malaysia, are compensations adequate? Are the landowners compensated well? Therefore, the main issue of this research can be concluded as ‘To what extent the notion of adequate compensation as applied by the existing laws is concordant with the expectation of the parties involved’.
The meaning of adequate compensation has different interpretations in different countries. In United States, the market value of the subject property is generally held as just compensation for the dispossessed owner (Eaton, 1995). In UK, compensation is based on the principle of value to owner that is made up of market value together with other losses suffered by the claimant (Denyer-Green, 1994). This principle is broadly followed in most Commonwealth countries and regions such as Australia (Rost & Collins, 1984) and Hong Kong (Cruden, 1986). In China, the current compensation laws are far from adequate, due to the just terms compensation principle not being in place, and has caused great discontent (Chan, 2003).
Usilappan (1997, 2000) concerned payment of fair, equitable and just compensation to the affected owners. The Constitution required payment of adequate compensation and the Act provides for market value and other damages and, though these appear equitable in law, in practice the landowners still suffer. Various amendments to the Act provide the landowners lesser compensation such as compensation on planned use, relocation hardships and business losses. Most jurisdictions have done away with betterment, but in Malaysia the betterment clause is still in the Act (Buang, 2001; Usilappan, 2000; Xavier, 1999).
Based on the above discussions and the current attributes of compensation under laws of land acquisition in Malaysia, are compensations adequate? Are the landowners compensated well? Therefore, the main issue of this research can be concluded as ‘To what extent the notion of adequate compensation as applied by the existing laws is concordant with the expectation of the parties involved’.
The Land Acquisition Act, 1960 (amended) provides that the State Authority can acquire any land needed:-
- For any public purpose; or
- By any person or corporation for any purpose which in the opinion of the State Authority is beneficial to the economic development of Malaysia or any part thereof to the public generally or any class of the public; or
- For mining, residential, agricultural, commercial, industrial or recreational or any combination thereof.
The officer responsible for the valuation attends the Land Administrator's enquiry. He will also be present in court as an expert witness, if and when the matter is referred to the High Court. He can also be called to sit in as an assessor in the High Court to determine any dispute in the compensation offered by the Land Administrator.
The basis of valuation by the JPPH is the market value as provided in the Act. Apart from the market value of the land acquired, there are other matters that have to be considered by the valuation officer, like damages for severance, injurious affection and consequential expenses.
The material date of valuation is the date of the publication in the Gazette of the Section 4 notice of the Act, if it is followed by a publication of the Section 8 notice within 12 months, otherwise, it is the date of the publication of the Section 8 notice.
The land owner or any person who has an interest in the land acquired has the right to attend the Land Administrator's enquiry. He can be represented by a lawyer and / or a valuer. If he is represented by a valuer and a valuation report is prepared, he may claim the valuer's fees as cost.
All claims for compensation should be submitted at the enquiry. If the person interested is not satisfied with the compensation awarded by the Land Administrator, an appeal to the High Court can be made through the Land Administrator.
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