THE recent controversy about an attempt to rezone part of S12 Petaling Jaya has raised concern as to what is the proper planning function of a local authority.
This is because the advertisement calling for public objections to proposed amendments to the Local Plan did not go through the councillors This matter is by no means confined to Petaling Jaya but has also occurred in other local authorities. In Subang Jaya, there was an attempt in the Subang Ria Park matter to allow changes to zoning which were never proposed in the Draft Local Plan.
Even after a public hearing process in the Draft Local Plan, the attempt to amend after the objection hearing was entertained. Kuala Lumpur City Hall allows persons to apply for amendments of zoning even though such amendments are inconsistent with the Kuala Lumpur Draft Local Plan.
The local authorities justify this by saying the law allows them to do so as the Local Plan had not been gazetted. However, this makes a mockery of the extensive right of all members of the public to object or give comments as opposed to just neighbouring land owners where there is no gazetted Local Plan.
It is perhaps pertinent that governments understand the functions, powers and responsibilities of the local authority under the Town & Country Planning Act 1976 (“TCPA 1976”) in relation to the planning control under a Local Plan.
The Local Plan is a vital planning control document that embodies in spirit a social agreement between the people and the government in relation to what constitutes an acceptable level of development to ensure sustainable development.
S18 of the TCPA 1976 prohibits any development inconsistent with the Local Plan.
The Local Plan is supposed to go through an arduous level of preparation which can take years. Statistical data, professional opinion, state and federal policy evaluation and extensive public participation is required for its preparation.
In fact, the Kuala Lumpur Draft Local Plan took more than a year just to hear public objections. The Local Plan is much like an architectural plan to a house whereby the number of rooms is identified, toilets, kitchen area, height, amount of playing space, number of window, number of occupants, desires amount of ventilation etc.
However, unlike a house plan it also considers the economic well-being, social interaction, productivity and health of its occupants as well as state and federal policy. It is formulated after discussion with the intended occupants who will be living there. Once formulated it should not be amended on an ad hoc basis to benefit some occupants at the expense of others without proper consultation with all occupants.
This is precisely why the Local Plan is difficult to amend. Any amendments must be initiated by the local authority.
The state government can in certain circumstances direct the local authority to consider certain proposals to amend but those circumstances must be exceptional and even then the extensive pre-consultation under S12A and public hearing under S13 and S14 must be followed. In all cases there must be full justifications from a town planning perspective as well as statistical support. In cases where the effect of the amendment is to increase the intensity of the development (more people, more buildings, more cars), a critical evaluation is required as to whether the infrastructure requirements under the original plan has been met in the first place.
The problem in local government occurs when persons make applications for development which are directly inconsistent with the Local Plan. When these applications are rightly rejected, they make all kinds of complaints to the State.
Surely these persons should have checked the Local Plan before buying property. It is not open to them to complaint later that they can’t make more money because the zoning does not meet their commercial needs.
Unhappy with, this some of them even resort to seeking to lobby the State for the amendment of the Local Plan for their own individual needs.
The very purpose of a Local Plan is to prevent ad hoc planning approval and if amendments are made for the purposes of individual interest as oppose to public interest it would make a mockery of the Local Plan and would be violation of the proper planning function of the local authority under the law.
The procedure and policy for the amendments of a Local Plan be as follows :-
1. The proposal to amend must be that of the local authority or in the case of direction by the state authority under S16(2) of the TCPA 1976 be tabled before the local authority for approval. Under no circumstances can any officer of the local authority propose amendments without going through council as the Local Planning Authority under the TCPA 1976 is the councillors and the mayor or president;
2. Any proposal to amend must be supported with facts, statistics and data. More importantly a paper to this effect must be tabled before council, setting out clearly why amendments are needed and why the earlier plan needs to be amended and if the objective of the earlier plan had be met. In particular, the issue of whether sufficient public infrastructure (roads, drains, parking spaces, parks) have been met under the old plan;
3. Once the council decides that a proposal for the amendment of the Local Plan can be considered, it must give publicity to the proposal and allow anyone to make representations to the Local Planning Authority (S12A(b) TCPA 1976)
4. Once this process is completed and the information obtained evaluated, the local authority will then come out with its own draft amendments which are again tabled before council for approval;
5. These proposed draft amendments are once again advertised for public objections under S13 of the TCPA 1976 and a statutory hearing of the objections are undertaken in S14 by three persons appointed by the state.
Only after objections have been heard and decided and the draft further amended to incorporate the decision on the objections is it then submitted to the state authority for assent whereby it comes into force.
The government must be aware of the critical function of the Local Plan as a sensitive and collective agreement between the people and government as a blueprint for sustainable development and the government must strive to defend the plan against ad hoc amendments that do not benefit the public.
Derek FERNANDEZ is a Petaling Jaya councillor. Brickbats: [email protected]