THE Kinrara-Damansara Expressway (Kidex) project has certainly been the talk of many angry Petaling Jaya (PJ) residents these past two months.
There has been much debate for and against the project. Its concessionaire Kidex Sdn Bhd says it will ease traffic congestion in PJ and have spillover economic benefits. PJ residents however fear increased noise, pollution and depreciation in property value due to the proposed elevated highway that will cut through SS2, Section 14 and PJ Old Town.
But before we even discuss the merits or demerits of the project itself, what legal requirements and conditions will the concessionaire, federal and state governments have to meet before the project can proceed? So far, a lot of discussion has not focused on the legal aspects. It is therefore instructive to know exactly what the law entails and how the government intends to engage the public to fulfil its legal requirements.
According to the concession agreement , there are at least two conditions precedent that must be fulfilled by Kidex Sdn Bhd within one year of the agreement’s signing, that is by 15 Nov 2014. The conditions are to get financing for the project and to carry out and report on “the outcome of a Public Opinion Survey for the proposed project.” Works Minister Datuk Fadillah Yusof has said the project would be cancelled if the conditions precedent are not met.
There is thus a clear indication that the government wants to engage the public through a survey, however there are no details on how or when this survey will be done.
There are further laws that must be complied with beyond the concession agreement, which neither the federal nor state government has properly addressed.
The Town and Country Planning Act’s section 18 disallows any development that is inconsistent with a local plan.
A local plan is the development blueprint for the city. PJ has three local plans known by their Malay acronyms as RTPJ1, RTPJ2 and RKK13. None of these plans have any provision for Kidex. As Kidex will run through areas that are covered under all three local plans, any application to develop Kidex must be automatically rejected.
To get around this, the local plans must be amended to include Kidex. The process to amend a local plan requires detailed studies and reports to justify the changes being proposed. That means reports on the environmental, social and traffic impact must be prepared and then presented to the public for scrutiny.
The manual that governs the preparation of local plans (Manual “Sustainability Assessment” Dalam Penyediaan Rancangan Tempatan) states that the entire process must be documented with a monitoring mechanism in place to ensure accountability.
These requirements must be complied with for Kidex to be lawful. The federal and state governments cannot simply bypass these requirements, whatever figures and facts about reduced traffic congestion or economic benefits they may quote.
The Total Planning and Development Guidelines issued by the Department of Town and Country Planning stress the need for accountability in carrying out projects. It has a whole chapter dedicated to the need for trustworthiness and credibility on the part of the authorities and states that any actions must be based on “actual knowledge, matured experience based on consultation and the decision made [must be] orderly and credible.”
Ignorance is bliss
Yet, it appears that these stringent requirements contained in government rulebooks and regulations are often not followed, and are again being ignored in the case of Kidex. This is because such knowledge is not widely known by the public. Indeed, so long as people are kept ignorant of their rights, they cannot demand for it.
Even if the local plans are amended to incorporate Kidex, there is still no guarantee that it will be done in an accountable and transparent manner.
MBPJ’s amendment of local plans to accommodate development on the Kelana Jaya PKNS football field is one example of an amendment that did not comply with regulations. The field was originally zoned as a green space in the local plan registered with the state government. MBPJ however had a different version that showed the same area zoned as commercial land. It emerged during an investigation by Selangor’s Select Committee for Competency, Accountability and Transparency (Selcat) that MBPJ amended the local plan after it was gazetted. MBPJ town planning senior assistant director Faiwos Abd Hamid in fact admitted that it was normal practice to make such “corrections” to the local plan even after gazetting. Despite the investigation, no one has been disciplined for the different versions of the local plan that emerged.
The most recent attempt to amend the local plan was done in December 2013. However, despite the fact that the process to gazette these amendments hasn’t been finalised, work has already started for some of the proposed developments, making a mockery of the law. For instance, development of Icon City in PJ’s SS8 is well underway, even though the proposal to rezone the area industrial to commercial is only being made now.
It is still not too late for the federal and state governments and their agencies to conduct proper consultations and impact studies on Kidex to comply with the spirit and letter of the law. It is not sufficient for Menteri Besar Tan Sri Khalid Ibrahim to state that, “Dalam hal ini kalau kita tidak setuju pun, masalah trafik tidak akan selesai, jadi kita perlu ‘adapt dan adopt’.” Proper procedures to amend the local plan with full public disclosure need to be carried out so that those affected can make a free and informed decision on the matter.
After all, what is the purpose of the law when the government agencies at federal, state and local level tasked with its implementation ignore it and allow developers to proceed without following proper procedures? How are these examples demonstrative of good governance, transparency and accountability?
These questions will continue to emerge on the Kidex issue and has even sparked discussion in Penang on a similar issue. Protest against Kidex has also encouraged another group of Petaling Jaya residents to stand up and voice their opposition to the proposed Damansara-Shah Alam (DASH) highway. It would be better if the government heeded the guidelines it has set for itself in approving any development if it intends to be successful in convincing the public of the benefits of any development.