Citizen Nades
Posted on 4 September 2012 – 08:41pm

R. Nadeswaran

YOU live in a single-storey terrace house in a narrow lane. Through the grapevine, you hear that a developer has bought 10 similar houses in two nearby streets. You are told that those houses will be demolished to make way for a high-rise condominium.

You worry about the traffic, the noise and dust pollution and wonder if the existing infrastructure can cope with the increase in population.

What can you do? You are told that the neighbourhood will be consulted after the developer has submitted his building plans. The Town and Country Planning Act (TCPA) requires the approving authority, in most cases the local council, to have consultations with those likely to be affected by the development.

You wait and wait. No letter comes. Then you hear that a meeting had been held and you were not called. You seek an explanation. The officer at the counter says only owners of “neighbouring land” can object and reads out Section 21(8) of the TCPA which defines neighbouring land:

a. Lands adjoining the land to which an application relates;

b. Lands separated from the land to which an application made under this section relate by any road, lane, drain or reserved land the width of which does not exceed 20 metres and which would be adjoining the land to which the application relates had they not been separated by such road land, drain or reserved land;

c. Lands located within a distance of 200 metres from the boundary of the land to which an application under this section relates if the access road to the land to which the application relates is a cul de sac used by the owner of the lands and owners of the land to which the application relates.

You are helpless. Although you are a concerned neighbour, you are not classified as an “adjoining neighbour” and will not only be unable to raise objections but also be unable to institute any action to prevent any development, however hazardous it is.

In Kuala Lumpur, the matter becomes more complicated as City Hall (DBKL) wrongly styles itself that the TCPA is superseded by its Federal Territory Planning Act (FTPA) of the Federal Territory. DBKL does not write to the affected residents.

Instead it places advertisements in one or two newspapers which state the lot number of a property, which is definitely not familiar to many of the neighbours. The particulars of the property do not include the postal address, which is essential. Using the postal address makes it easier to identify the proposed development area but despite complaints, DBKL has not relented.

But DBKL took the issue of public consultation to extremes in 1992 after the then Supreme Court ruled against it in the case of Datin Azizah Abdul Ghani v Dewan Bandaraya Kuala Lumpur & Others over its refusal to not allow her to take part in the planning decision making process.

The rules provided that upon receipt of any application for planning permission, DBKL should inform the registered proprietors of the land adjoining the land to which the application relates, to enable them to exercise their right to object to the granting of planning permission.

Azizah, as an adjoining neighbour applied for an order of certiorari to quash the decision of the mayor on the grounds that she was never given an opportunity to object, since she never received the DBKL notice calling for objections.
DBKL argued that the right of hearing for the adjoining neighbour, which had been conferred by statute, had been removed by the amendment to the FTPA.

The amendment had also provided for appeal to the Appeal Board by only those landowners whose application for planning permission had been rejected. The trial judge ruled that Azizah had no locus standi to object to a proposed land development activity.

On appeal, the Lord President Tun Hamid Omar said the court recognises the right of public participation in the planning process.

He held that although the FTPA did not incorporate provisions on informing adjoining neighbours about the application for planning permission, the Datuk Bandar who is the authority empowered to grant planning permission is required to comply with the Planning (Development) Rules 1970.

The Supreme Court granted an order of certiorari to quash the disputed development order granted by the mayor as he had failed to inform the adjoining neighbour about the application for planning permission.

In the midst of all this, the then mayor, Tan Sri Elyas Omar remarked that Bukit Tunku was not meant for the Brahmins only. “Aren’t others interested in living in Kenny Hill? Nobody should say that this is a sacred hill, like a Brahmin hill where no pariahs can go,” he was quoted as saying.

Two years after the landmark ruling by the Supreme Court, DBKL decided to move the goalposts in its favour. By the stroke of a pen, the right to a public hearing was narrowed down to two limbs – if there is a change in land use and if there is an increase in residential density.

So, if someone was constructing a building which would endanger the lives of the occupiers of the neighbouring property, it could not be objected to. Even if the developer was digging deep below the surface which would result in a landslip, the neighbours could only watch with their arms folded.

In short, residents of Kuala Lumpur were told: “Come to us when there is a change in land use or density. Otherwise, shut up and remain silent.”

Hence, if you live in the foothills and someone is clearing the slope above your house, you have no right to object. The irony is that the preamble to the TCPA reads: “An Act for the proper control and regulation of town and country planning in Peninsular Malaysia and for purposes connected or ancillary to.”

Unless we don’t know or got our geography wrong, isn’t the Federal Territory of Kuala Lumpur in Peninsular Malaysia? Aren’t federal laws the law of the land which over-rides state or local council laws? Is DBKL hiding behind the law to cover up for its shortcomings in planning approvals which have resulted in so many complaints in its procedures?

The controversy over the development in Bukit Gasing is an example. DBKL says owners of “neighbouring property” can only object on land use and population density. What about the safety and wellbeing of the occupants? As far as DBKL is concerned, no one is entitled to a say on hillside development, the environment and the damage the development would cause.

R. Nadeswaran is editor (special and investigative reporting) at theSun and can be reached at: