New dimensions in public land abuse

The closing days of 2023 brought another surprise for the citizens of Kuala Lumpur, drawing reactions, especially from those who believe that nature can, and should, be conserved in appropriate measures alongside the city’s physical development.

A gazette was published by the Land Office with just four working days’ notice at the turn of the year, announcing a public enquiry for de-gazetting a 5.25ha plot of land located behind Wisma Bernama in Jalan Tun Razak, from its flood mitigation reserve status.

Approximately half of this Sungai Bunus flood mitigation reserve is water surface, making it a biodiversity oasis valuable beyond its most obvious character as a water birds/aquatic life ecosystem.

At the enquiry, objectors were told that this reserve is undergoing a process of being split into two separate reserves – basically ‘land’ and ‘water’ components, the constant refrain being ‘tiada tujuan pemberimilikan’ (no intention to alienate).

Past experience breeds scepticism

It was no surprise that the objectors remained sceptical, against a several-years-old historical backdrop of a good number of Kuala Lumpur retention ponds suffering serious diminishment, their functional capacities compromised in the name of ‘development’.

Nothing was shown to substantiate the alleged ‘administrative splitting’. It would have been fair to expect a parallel (even if not perfectly back-to-back) way of working. However on further questioning, the officer responded that the drawing up of new ‘pelan warta’ (for re-gazetting) had not yet been initiated.

This raises the prospect that (1) there will be a significant hiatus during which it is unprotected from alienation, and (2) the relative proportions of land vs water could be altered, with the same predictable outcome – developable land ‘created’ at the expense of flood mitigation capacity.

Exploitation without alienation?

In recent times, another disconcerting trend has emerged, about the commercial exploitation of public-purpose lands. Two known examples were enquired into at the Land Office.

On the 0.68ha Lot 65419 in Jalan Kuching, which had been gazetted as a ‘green belt’ since 2009, a car showroom now stands.

Section 63 of the National Land Code (NLC) does allow for reserved land to be leased out for a maximum of 21 years, and this was what had happened and was reported previously in the media (the lease started in 2021 and expires in 2042).

Under planning law, it continues to be zoned as public open space per the Kuala Lumpur City Plan 2020 (KLCP2020). Its development order is understood to rely on a Kuala Lumpur City Hall bylaw titled ‘Federal Territory (Planning) (Classes of Use of Land and Buildings) Rules, 2018’ whereby ‘classes of use’ is essentially a secondary land use conditionally permitted within a primary zoning.

A posh, ‘royal-themed’ event space

Along Jalan Sri Hartamas 1 where it skirts along the boundary of Istana Negara is the 1.62ha Lot 58216, gazetted in 2010 as a ‘recreation park’ reserve. Like the aforementioned car showroom site, it too, continues to be zoned in the KLCP2020 as public open space and relies on interpretations of permissible secondary uses to gain its planning approvals as an event space.

The construction site signboard says: “Proposed Construction of Laman Tuanku Commemorative and Recreational Gardens” located on “Rizab Taman Rekreasi PU (B) Lot 58216” – acknowledging its reserved status but omitting the gazette number, which is on record as “PU (B)153-2010”, i.e. the federal government’s 153rd gazette in that series for the year 2010.

It is one thing to revoke a recreation park’s status and rezone it for development (and alienation), but another thing altogether when it is quietly foisted upon citizens/ratepayers, evading every avenue of public knowledge/inquiry, under both land and planning laws.

Leasing exists for good reason

The mode of leasing in the aforementioned cases has no requirement of land title – which public purpose reserves obviously cannot have. Historically, this manner of leasing out land by the government has served very essential purposes, for enabling private warehousing or cargo handling businesses to build and operate their facilities within Port Authority reserves.

But the key difference here is that these activities are pursuant to the stated purpose of the National Land Code gazettement and fully compliant with the primary land use zoning in the local plan.

The ethical dilemma

Unlike other owners of car showrooms and event spaces, the two here did not undergo bidding, nor pay open market prices. Applying for a Section 63 lease is an entirely closed process conducted in an environment where ‘special connections’ count the most.

The broader ethical dilemma here is that our government authorities appear to be actively seeking new ways to bend laws and regulations ‘almost to the breaking point’ – thereby selectively lowering the bar for the favoured few.

Within the land/natural resources sphere, this ethical dilemma is not unique to the urban environment – state forestry authorities give out large quarry, timber plantation, and agriculture concessions, using legal provisions such as ‘minor licence’, intended for much smaller scale purposes.

The risk to Sg Bunus

The ‘no alienation’ assertion by the Land Office was not entirely surprising, going by preliminary enquiries by some of the objectors. In this respect, it differs from prior retention pond cases which involved alienation.

Nevertheless, its location (bordering the central business district), and high surrounding land values, plus the fact that a future/re-gazetted reserve could still be leased out for 21 years, remains a worry.

City Hall, in a report last month, emphasised their need to gain separate management control for the land portion. Ultimately, only two questions matter. Firstly, can City Hall guarantee that no planning approvals will be issued, other than for infrastructure projects? Secondly, can the Land Office guarantee that neither alienation nor disposal of reserved land (i.e. in the broadest sense, not limited to Section 63 leasing), would occur?

For now, we can only wait and see.

The views expressed here are the personal opinion of the writer and do not necessarily represent that of Twentytwo13.

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