Batu Caves condo: What they’re not telling you

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.

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.

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.

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Former MBPJ councillor KW Mak is aiming to run as an independent candidate for the Bukit Gasing state constituency in the coming elections. He is the author of The Truth About Petaling Jaya Land, which is available at Silverfish Books.