An overview of the Uniform Building By-Laws, 1984 & the Amendments 2007 [Part 2]

2.0 THE LOCAL GOVERNMENT

Before going farther into the discourse, it is best to look into how the many laws governing buildings and construction came into existence.

It was widely believed that in 1974, the second Prime Minister, Tun Abdul Razak, had a vision to make the local governments undertake more than their traditional roles of maintaining public sanitation and general welfare of their residents. He had a vision to turn the local governments into agents or catalysts for industrial, commercial and residential developments. The local governments were also to be turned into effective organisations to bring about development activities within their localities.

2.1 ACT 171 - LOCAL GOVERNMENT ACT, 1976

The aforementioned vision was then drafted into Act 171 - the Local Government Act, 1976. Effectively, Act 171 was a replacement and consolidation of the many separate laws governing local authorities which were inherited from the colonial era:

1. Town Boards Enactment of the Federated Malay States [F.M.S. Cap. 137],

2. Municipal Ordinance of Straits Settlements [Cap. 133],

3. Johore Town Boards Enactment [Johore No. 118],

4. Municipal Enactment of Kelantan, 1938 [No. 20/1938],

5. Town Boards Enactment of Trengganu, 1955 [Cap. 64 3/1955],

6. Local Councils Ordinance, 1952

and a post-independence Act:

7. Local Government (Temporary Provisions) Act, 1973

Under the Local Government Act, 1976, State Government, in consultation with the Ministry of Housing & Local Government and the Election Commission, may set up a Local Authority, make known its status as a Municipal or District Council, declare its area and, define its boundaries.

Currently there are 145 Local Governments or Authorities [including WP/Putrajaya] in the country, of which 98 are in the Peninsular & 22 are in Sabah and 25 are in Sarawak. Of these, 9 are City Councils/Halls [Majlis/Dewan Bandaraya], 37 are Municipal Councils [Majlis Perbandaran], and 98 are District Councils [Majlis Daerah].

These Local Authorities are vested by the Local Government Act, 1976 to control development of the land within their respective areas. The Act also empowers the Local Authorities to involve in social, economic and infrastructural developments, and act as catalysts for industrial, commercial and housing development - in addition to their basic functions to oversee the amenities within their boundaries.

2.2 ACT 172 - TOWN AND COUNTRY PLANNING ACT, 1976

Act 172 - the Town and Country Planning Act, 1976 was proposed concurrent with Act 171 – the Local Government Act, 1976. The former was adopted from the British System of Town Planning (The Development Plan System) as a replacement of the older “Master Plan” System which was found to be inflexible for rapid development of urban areas. The Town and Country Planning Act, 1976 fundamentally instituted a uniform planning legislation which covers all the states.

The Town and Country Planning Act, 1976 sets the framework for Local Authorities to:

1. Formulate Structure Plans - policies on social, economic and physical characters within their boundaries, and

2. Use the same as guidelines for the preparation of Local Plans, which are set to control the use of land and buildings and property developments,

2.3 ACT 133 - STREET, DRAINAGE & BUILDING ACT, 1974

Upon independence, the governmental system for Malaysia was divided into three platforms, namely Federal, State and Local Governments. Prior to the introduction of Act 171 – the Local Government Act, 1976, these Local Governments or Authorities, i.e. the town or municipal councils, had written separate laws and regulations under the provisions of the various pre-independence town boards and municipal enactments and ordinances, mentioned earlier, to suit their local needs and requirements. These varying laws and regulations had created confusions and distress among the industry players. For instance, architects and engineers then had to submit building plans and other documentation of various standards to comply with the variety of Local Authorities’ peculiarities.

To consolidate the differences, many sections of these pre-independence enactments and ordinances of the Local Governments which were related to street, drainage and building were repealed or absorbed into this Act 133 - the Street, Drainage & Building Act, 1974. This Act however is only applicable in West Malaysia.

Since, this Act is the principal Act to the Uniform Building By-Laws, 1984 [UBBL], which is the main topic of this paper, we shall refer to its latest amendments which affect the UBBL directly.

Extracts of Act A1286

STREET, DRAINAGE AND BUILDING (AMENDMENT) ACT 2007

An Act to amend the Street, Drainage and Building Act 1974.

(1) This Act may be cited as the Street, Drainage and Building (Amendment) Act 2007.
(2) This Act shall apply only to Peninsular Malaysia.

Amendment of section 3

2. The Street, Drainage and Building Act 1974 [Act 133], which is referred to as the “principal Act” in this Act, is amended in section 3
(a) by inserting after the definition of “building”
the following definition:
‘ “building plans” means plans that include site plans, key plans, floor plans, sections and elevations as set out specifically in any by-laws made under this Act;’;

Redefinition of Certificate of Fitness for Occupation to Certificate of Completion and Compliance

(b) by substituting for the definition of “Certificate of fitness for occupation, temporary certificate of fitness for occupation and partial certificate of fitness for occupation”

the following definition:

“certificate of completion and compliance”

Redefinition of Qualified Person to Principal Submitting Person

(d) by inserting after the definition of “premises”

the following definition:

‘ “principal submitting person” means a qualified person who submits building plans to the local authority for approval in accordance with this Act or any by-laws made thereunder and includes any other qualified person who takes over the duties and responsibilities of or acts for the first mentioned qualified person;’;

(e) by substituting for the definition of “qualified person”

the following definition:

‘ “qualified person” means a Professional Architect, Professional Engineer or building draughtsman registered under any written law relating to the registration thereof;’;

Specifically for Structural Engineers

and

(f) by inserting after the definition of “structural plan” the following definition:

‘ “submitting person” means a qualified person who submits plans other than building plans to the local authority or relevant statutory authority in accordance with this Act or any by-laws made thereunder and includes any other qualified person who takes over the duties and responsibilities of or acts for the first mentioned qualified person;’.

Increase of Penalties for Contravening the Act

Amendment of section 70

5. Section 70 of the principal Act is amended—

(f in subsection (11), by substituting for the words “one thousand” the words “twenty-five thousand”;

(g) in subsection (12) —

(i) by substituting for the words “one thousand” the words “twenty-five thousand”; and

(ii) by substituting for the words “one hundred” the words “five hundred”;

(h) in subsection (13)—

(i) by substituting for the words “ten thousand ringgit” the words “fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both”;

and

(ii) by substituting for the words “two hundred and fifty” the words “one thousand”;

Issuance of CCC by the Principal Submitting Person

(l) by inserting after subsection (19) the following subsections:

“Issuance of certificate of completion and compliance

(20) No certificate of completion and compliance shall be issued except by a principal submitting person in accordance with the time, manner and procedure for the issuance thereof as prescribed by this Act or any by-laws made thereunder.

(21) Before the issuance of a certificate of completion and compliance, it shall be the duties and responsibilities of the principal submitting person to —

(a supervise the erection of the building to ensure that the erection is in conformity with the approved plans and the requirements of the provisions of this Act or any by-laws made thereunder;

(b) ensure that the building has been duly constructed and completed in conformity with the approved plans and the requirements of this Act or any by-laws made thereunder and that all technical conditions imposed by the local authority has been duly complied with;

and

(c) ensure that the building is safe and fit for occupation.

The Rights of the Local Authorities to Issue Notice of Compliance to the Approved Plans

(22) Nothing contained in this Act shall affect the powers conferred on the local authority by this Act or any by-laws made thereunder pertaining to the erection and construction of a building for the purpose of ensuring that the erection and construction of such building are in conformity with the approved plans and the provisions of this Act or any by-law made thereunder.

(23) If it appears to the local authority that a noncompliance with the approved plans and provisions of this Act or any by-laws made thereunder by the principal submitting person has occurred in the erection and construction of the building, the local authority may issue to the principal submitting person—

(a) a notice in writing, requiring compliance within the period specified in the notice, as the local authority thinks fit, in order that the noncompliance be rectified; and

(b) a directive in writing to withhold the issuance of the certificate of completion and compliance until such non-compliance has been rectified.

Penalty for Contravening the Act on the Issuance of CCC or Allowing Occupancy without CCC

(27) Any person who—

(a) is not the principal submitting person but issues a certificate of completion and compliance;

(b) issues a certificate of completion and compliance without the relevant forms as prescribed in any by-laws made under this Act;

(c) issues a certificate of completion and compliance in contravention of a direction given by the local authority to withhold such issuance pending rectification of any noncompliance;

(d) knowingly makes or produces or causes to be made any false or fraudulent declaration, certificate, application or representation of any form prescribed in any by-laws made under this Act;

(e) uses any forged, altered or counterfeit declaration, certificate, application or representation of any form prescribed in any by-laws made under this Act knowing the declaration, certificate, application or representation have been forged, altered or counterfeited; or

(f) occupies or permits to be occupied any building or any part thereof without a certificate of completion and compliance,

shall be liable on conviction to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding ten years or to both.”.

2.4 THE CERTIFICATE OF COMPLETION AND COMPLIANCE [CCC]

The Prime Minister, in 2004, called for a replacement of the Certificate of Fitness for Occupation [CFO] by the Local Authorities with self-certification by construction professionals. The intention was to improve the efficiency of building delivery system. In 2007, the parliament amended among others the Uniform Building By-Laws, 1984 [UBBL] and the Street, Drainage & Building Act, 1974 to effect the issuance of the CCC by Professional Architects or Professional Engineers or Registered Building Draughtsmen [the latter is limited to buildings not exceeding 2-storeys and an area less than 300sqm]. These individuals, who were previously known as the “qualified person”, are now known as the “Principal Submitting Person” [PSP] under the amended Act.

Most importantly, from April 12, 2007 onwards PSPs will issue the Certificate of Completion and Compliance or the “CCC” to legalise the occupation of all buildings as a replacement to the Certificate of Fitness for Occupation [CFO]. Thus, the PSPs are taking over the responsibilities of the Local Authorities [Pihak Berkuasa Tempatan or PBT] to issue CFO.

Hence, all development projects where the Building Plans are submitted from April 13, 2007, will be certified fit for occupation by the PSP without requiring the Local Authorities consent.

Controls on CCC

The government sees it fit for professionals to undertake the CCC system because there is a check-and-balance being introduced in the system in the form of “Matrix of Responsibility”. A total of 21 Certification Forms will be endorsed along the entire constructional process.

These forms are gazetted as Schedules [Form G1 – G21] under the revised Uniform Building By-Laws, 1984 – Amendment 2007.

The relevant sub-contractors and/or licensed trade contractors and the PSP shall certify each of the 21 Form Gs that each stage of the works has been completed in accordance with the Approved Building Plans. Thus, the Matrix of Responsibility with the implementation of the 21 Forms Gs will make everyone accountable for their respective scope of work.

For the implementation of CCC, six [6] Acts were amended. There were the following:

1. Act 117 – Architects Act, 1967 / Act A1287 Amendments 2007

Amendments: Increased penalty for wrongful certification & express provisions on fraudulent certification

2. Act 118 – Housing Development (Control and Licensing) Act, 1966 / Act A1289 Amendment 2007

Amendments: Redefinition to suit CCC & Vacant Possession [VP] issued together with CCC

3. Act 133 - Street, Drainage & Building Act, 1974 / Act A1286 Amendment 2007

Amendments: Provisions for implementation of CCC, definition of Principal Submitting Person & increased penalty for wrongful certification

4. Act 133 – Section 133 - Uniform Building By-Laws, 1984 / Amendments 2007

Amendments: Provisions for implementation of CCC & introduction of Form Gs [Matrix of Responsibility]

5. Act 138 – Registration of Engineers Act, 1976 / Act A1288 Amendments 2007

Amendments: Increased penalty for wrongful certification & express provisions on fraudulent certification

6. Act 318 – Strata Titles Act, 1985 / Act A1290 Amendments 2007

Amendments: Redefinition to suit CCC

Nonetheless, the Local Authorities are empowered to stop the issuance of the CCC in the event of non-compliance with the conditions of the building plans approval and/or the relevant Acts.

Limitations & Exclusions

The issuance of CCC is restricted to technical issues concerning health, safety and essential services. PSP will not be held responsible for getting approvals for non-technical conditions, such as Bumiputera quota, low cost housing and contribution for public facilities – which to be resolved during planning and/or building plans approval stages or via other means. These are to be resolved between the Developers and the Local Authorities.

Objectives of CCC

The CCC, which replaces the Certificate of Fitness for Occupation (CFO), has been put in force to enable smoother deliveries of completed buildings to their eventual owners or users. Specifically, under the revised Acts, the Professional Architect or Professional Engineer or Registered Building Draughtsman of a project who submits the building plans [PSP] will have to issue the CCC before owners can take possession of their properties and live in them.

Professionals Accountable and Responsible for CCC

With the enforcement of the CCC, Professional Architects and Professional Engineers - and staff under them such as graduate architects, engineers and clerks-of-works - and, Specialist Sub-Contractors and Main Contractors are now legally responsible and liable under the latest laws to confirm the due completion and compliance of the building construction to the relevant building laws.

Principal Submitting Person’s [PSP] responsibilities under CCC are as follows:

1. Submit planning and building plans to PBT for approval,
2. Inform PBT of the commencement of construction works on site,
3. Supervise/Inspect construction works on the site and ensuring that the laws and technical conditions of the PBT are followed.
4. Report breaches of construction against approval, explain reasons of breach and perform recovery actions in the event of breach during construction,
5. Present work-resumption notice to PBT,
6. Ensure Forms G1 – G21 are completed.
7. Upon satisfactory completion of the Works and obtaining clearances or confirmation from the six [6] essential services departments, issue the CCC to owners and developers and present a copy to the PBT and the Professional Board

It should be highlighted further that before issuing the CCC, Professional Architects and/or Professional Engineers, as PSP must ensure that:

1. The CIDB registered contractors and licensed tradesmen or personal licensees, such as Electrician, Plumber, Air-Conditioning and Fire Protections System specialists, are informed of their obligations at the time of calling of tenders, and their certifications are obtained upon satisfactory completion of their scope of works.
2. All the certification Forms G1-G21 are duly filled, certified and compiled as part of CCC submission.
3. The Works is completed in accordance with the approved Building Plans (or subsequent revised approved building plans or as-built plans) and the PSP has supervised the works accordingly.
4. Clearances and/or confirmation of supply/connection for Six [6] essential services departments are obtained, specifically from,
1. Tenaga Nasional Berhad [TNB] - confirmation of electrical supply,
2. Water authorities [SYABAS, JBA, LAP, JAS etc] - confirmation of water supply,
3. Jabatan Perkhidmatan Pembetungan [JPP] - confirmation of connection to sewerage treatment plant or mains,
4. Jabatan Kesihatan & Keselamatan Pekerja [JKKP] - clearance from lifts and machinery department,
5. Jabatan Perkhidmatan Bomba & Penyelamat [Bomba] - clearances for active fire fighting systems and,
6. Roads & Drainage Department – [PBTs Internal Departments or JKR].

For a start, it is recommended that all architects and engineers familiarise themselves with the Uniform Building By-Laws, 1984 and the Street, Drainage & Building Act, 1974. However, in this paper, we shall restrict our review on the Uniform Building By-Laws, 1984.