Commercial developments on residential land

In the previous instalment of Ampersand, I touched on a resident’s right to object to a development project, even if they were not an owner of a neighbouring land as defined under the Town and Country Planning Act (TCPA).

Basically, all developments are subject to the National Physical Plan and National Urbanisation Policy. These two statutory documents supersede the local plan – as per Section 58(1B) of the TCPA – and ratepayers do have a right to insist that the policies contained within both documents are followed.

But what if an area was once residential, and the local council decided to change it into a commercial zone? Even if residents were to insist that the National Physical Plan and National Urbanisation Policy be adhered to, a commercial development over a residential area would definitely ruin the environment for the neighbourhood.

Local plan

The local council presently justifies the change of land use for an area through the creation of a local plan, which the TCPA allows for. Section 12 of the TCPA allows for the creation of a draft local plan, which shall consist of, among other things, a map and a written statement of the development and the use of land in the area covered by the local plan.

These proposals are subject to public scrutiny and require all objections from the public to be recorded.

Many residents may be unaware or ignorant of the importance of the creation of a local plan, however, and do not take part in this exercise. After all, it isn’t as if a signboard is placed up on a piece of land to state that there would be a development over it.

Rather, the change of land use is done on the written statement and the map in the local plan, and if residents do not state their objections when the draft local plan is open to the public for inspection, they are deemed to have endorsed these changes.

Land owners who have their properties zoned as a commercial area would then apply to the council to redevelop their properties into commercial centres, as is the case for Section 13 of Petaling Jaya, where some factories (industrial use) have been redeveloped into retail commercial centres.

Changing land use

While the council allows land owners to redevelop their properties once the land use has been changed by a local plan, a strict reading of the TCPA shows that this may be a violation of the Act itself, as there are conditions placed upon a local plan’s ability to change the land use of an area.

Firstly, Section 18(3) of the TCPA does not allow a local plan to overrule the use of any land or building that was already there prior to the creation of the local plan. That is to say, an industrial area marked as a commercial zone cannot be redeveloped into a commercial centre. This is to prevent town-planning laws from coming into conflict with Section 108 of the National Land Code, whereby the usage of the land stated in a land title – also known as the express condition – overrules any bylaws or restrictions imposed by the local council.

This does not mean that a township cannot be redeveloped. Section 38 of the TCPA states that when the local council adopts a local plan, it may declare any area covered by the local plan to be a development area.

Section 38(2) states: “Upon an area being declared to be a development area, it shall be the duty of the local planning authority to acquire, by purchase or by compulsory acquisition under the Land Acquisition Act 1960, all alienated lands situated with the area, and to develop the area in accordance with the local plan.”

If the declaration of a development and subsequent acquisition of an area isn’t done, Section 18(3) continues to apply and prevents the council from enforcing any land-use changes proposed in the local plan. This also means that a land owner whose factory sits within a commercial zone under the local plan cannot develop the area into a commercial centre, as doing so would violate the express condition of the land title.

Obviously, the Petaling Jaya City Council (MBPJ) does not support this interpretation since the council has gone ahead and approved development projects for areas that were formerly used for other purposes. My queries on these matters during a council meeting were not answered.

All local councils cannot ignore stating their interpretation of the sections that I have pointed out, since these issues concern the fundamental right of ratepayers to have a say in how the town they are living in is developed.

MBPJ councillor KW Mak would like to note that MBPJ has previously proposed to change the land use for areas like parks and forest reserves into commercial areas, and residents should not take it for granted that when the government presents a draft local plan for public scrutiny, such nonsense would not recur.