
Batu Caves (Wiki commons)
A LOT of accusations and allegations have been made in the recent
case of the condominium development near Batu Caves. On one hand, the
current
Pakatan Rakyat (PR)
Selangor government has accused the former Barisan Nasional (BN)
government of approving the Dolomite Park Avenue condominium project.
This was why, they said, the PR government allowed the project to
continue.
The BN’s response was that they only gave planning approval, which isn’t a development order. According to the BN, the
Selangor government had
every right to stop the project if it wanted to. The BN also noted that
approval to build the condominium was given on 26 June 2008, after the
PR had come into power in Selangor.
Which coalition is telling the truth? What’s the difference between a
planning approval and a development order? And what else aren’t they
telling us?
Planning permission
The approval that the BN government gave is called a “planning
permission”. The Town and Country Planning Act describes the process in
which a planning permission is applied for. The extensive plans that
need to be submitted for this planning permission include a geotechnical
report and a survey of all forms of vegetation and trees. It also
includes a land use analysis and its effects on adjoining land.
The developer must also submit “layout plans”, which include measures
for the protection and improvement of the land’s physical environment
and the trees in the area, and the allocation of public parks. If the
application does not violate any of the automatic rejection clauses, the
local council can grant planning permission either absolutely or
subject to such conditions as it thinks fit. The council can also
consult residents and ratepayers before giving this approval.
This entire process only deals with the submission of technical
documentation and studies, with proposals based on those submissions.
Planning permission is approved when these documents are in order.
Hence, approvals given at this stage do not yet constitute permission to
carry out development works.
Take, for example, the
planning permission
given by the Petaling Jaya City Council (MBPJ) to redevelop the PKNS
building in Section 52, PJ. Among the conditions the developer had yet
to obtain at the time of approval was:
(B) xiv. Merujuk serta mendapatkan kelulusan dari JKR Selangor
bagi tambahan satu lorong di interchange bersebelahan PJ Hilton dari
arah KL ke Jalan Barat.
Land conversion
The next step is land conversion, which is covered under the National
Land Code. In most cases, land earmarked for development is categorised
for agricultural use. Or a land owner with land meant for residential
use may want to build something bigger and convert the land use for
commercial purposes.
At this stage, the prepared and submitted plans detailed above must
be presented to the state government’s Land Office for further
deliberation. If the government denies the land conversion at this
stage, the development cannot proceed.

Those
who protest the condominium’s construction claim the work is an
environmental risk that will jeopardise the temple grounds (Wiki
commons)
On the other hand, if the land conversion is approved, the developer
must pay a premium for land conversion. This premium is calculated based
on the number of units and the type of units that will be built, minus
the portion of land that will be surrendered to the government for
public use. Land lot numbers for all the units to be built and for
designated public spaces are also assigned at this stage.
It is important to note here that once this premium is calculated and
paid, the development plans cannot change. This is because any attempt
to add structures or units would mean that the developer is cheating the
government out of the premium it deserves.
In the case of the Batu Caves condominium, I am made to understand
that the land was originally mining land. So, land conversion had to
happen before the development could proceed.
Permission to build
Once all that is done, the developer needs two things. One, a
developer’s licence from the Housing and Local Government Ministry as
stipulated under the Housing Development (Control and Licensing) Act.
And two, a development order from the local council, as stipulated under
the Streets, Drainage and Building Act, to proceed with actual
construction.
At this stage, details of the buildings to be constructed are
submitted to the local council engineers for approval. Control of the
construction site, passage of heavy vehicles, and even limitation of
construction hours are some of the conditions that the local council can
impose on developers.
Since the approval to build the Batu Caves condominium was reportedly
given on 26 June 2008, this suggests that the double-checking of facts,
the project’s viability, and land use conversion were already completed
at this juncture.
Show me your vote
From a technical standpoint, if due process had been followed, the PR
government would have no problems whatsoever in explaining why they
approved the development order for the Batu Caves condominium. They
would also not have any need to blame the previous government for the
earlier planning permission.
A
commission to
study the matter is also unnecessary if all the technical departments
had done their job and were able to provide the justification for their
decisions at a moment’s notice. (Side rant: if you need an independent
commission to check the work of your own staff, you are in serious
trouble.)
Apart from that, what we also have are both political coalitions promising to cancel the
project.
Clearly, because the Indian vote matters in what will be a hotly
contested impending general election, neither coalition can risk the ire
of the Batu Caves temple committee and their supporters.
Here’s the thing though – both the BN and PR have been coy about how
exactly they will cancel the development and what the cost will be to
ratepayers.
From BN to PR
To understand how things can go quite wrong, it would be instructive to direct our attention to Damansara Jaya, where the
Atria Shopping Centre used
to stand. During the 2008 election campaign, Tony Pua and Dr Cheah Wing
Yin brandished MBPJ meeting minutes at their ceramah to show that the
BN had approved the redevelopment of the shopping centre, which
residents were unhappy about. The duo promised that the DAP would stop
the redevelopment if they were voted in.

The Atria Shopping Centre which has since been torn down to be redeveloped (Source: pjnet.com.my)
Today, it’s clear the DAP was unable to keep that promise. The
redevelopment of the Atria Shopping Complex is well underway. Why did
the DAP fail to keep its promise to voters? Because planning permission
for the complex’s redevelopment was issued on 28 Feb 2008 before the PR
came into power.
But wait. Didn’t I say that planning permission is not the same as
the actual development order? Yes I did, and that is exactly how the
process is meant to work.
However, the BN government made it a standard that once a local
council gives planning permission, a development is considered approved
and all other permissions or approvals can be obtained during
construction. Here are a couple of projects that were approved and
developed under BN rule that did not follow due process:

Ken Damansara III did not convert the land title use from “fruit
orchard” to “residential” until a few months before the building was
issued a certificate of fitness.

The commercial developments in Section 13, PJ still have land titles
with the land use category of “industrial” even though the buildings
there are up and running today as commercial properties.
Unfortunately, the PR government inherited from the BN this
understanding of how development rules work. Subsequently, they
apologised to Damansara Jaya residents by saying the developer had to be
allowed to continue with the redevelopment of Atria Shopping Centre.
Otherwise, MBPJ would be hit with a lawsuit and PJ ratepayers would bear
the cost. As a compromise to residents, MBPJ scaled down the
redevelopment of the shopping centre.
But here is where the logic fails. If planning permission was given
and guaranteed approval for development was implied, the PR government
would not be able to even scale down the project, not legally at least.
In truth, the development process as practised by the state government
under both the BN and PR is so mired with haphazard inconsistencies that
the various government departments can’t even keep their records
straight.
So what are we left with? Correcting the system would be too tedious
and involve stepping on too many toes. It is much easier for our
politicians, especially when the polls are so close, to point fingers at
each other and make promises that they cannot legally implement.
Will the Batu Caves condominium be a repeat of what the Damansara
Jaya residents experienced? We will know after the next general
election.