http://thestar.com.my/news/story.asp?file=/2010/10/29/central/7301521&sec=central
The recently released Gated Community and Guarded Neighbourhood Guidelines has raised some doubts among residents prompting the minister in-charge Datuk Wira Chor Chee Heung to clear the air.
Q: Under what law are the guidelines provided for?
A: The preparation of the planning guidelines are in line with Section 2B (1) of the Town and Country Planning Act 1976 (Act 172), which requires the Town and Country Planning director-general to formulate and advise the government on matters concerning town and country planning and the use and development of lands in Peninsular Malaysia.
For the guidelines on guarded neighbourhood, no specific law governs its operation. Furthermore, local councils have no authority to approve the application in setting up the schemes, which had taken form in an ad hoc manner.
Q: Would the local councils be held liable should any untoward incidents happen as a result of the gated community and guarded neighbourhood schemes?
A: Considering the erecting of structures is under the purview and responsibility of the gated communities and residents associations, and these actions are voluntary, the local councils cannot be legally blamed for any untoward incidents in both gated communities and guarded neighbourhoods.
Q: Some feel that the guidelines are inconsistent with the existing laws (Street, Drainage and Building Act 1974 and Road Transport Act 1987) as clauses in these acts prohibit any form of restriction of access on roads, while the guidelines for guarded neighbourhood allow temporary obstacles, such as cones, security signboards and manual boom gates, as long as the locations are stationed by a guard.
A: The issue has been debated at length by Cabinet and NCLG members, and the decision to allow temporary obstacles was made after considering opinions and suggestions from stakeholders including local councils, residents associations and the police.
The temporary barrier shall only be allowed if there is a 24-hour security guard to control the temporary, non-stationary and non-dangerous obstacles. This does not contradict with the Road Transport Act 1987, which prohibits dangerous obstacles. Furthermore, the guidelines also state that a temporary obstacle can only be considered by the local authority on a case-by-case basis. If other residents disagree, the local authority may decline the installation of such obstacles.
Q: The guidelines imply that every entry-exit point must have at least a guard (as no permanent obstacle is allowed) but housing estates in the Klang Valley tend to have many entry-exit points. It would be impractical to place a guard at every location.
A: Firstly, the NCLG has made a decision that these guidelines are only applicable to new guarded neighbourhood schemes, and not the existing schemes which are often unplanned and thus not suitable for operation as a guarded neighbourhood.
Secondly, the clause about temporary physical obstacle is only an option, and not a condition. The residents associations can opt to operate the guarded neighbourhood through patrolling and other surveillance method without having to station guards at every entry-exit point.
Q: If the guards have no authority to deny anyone from entering the neighbourhood, how will the guarded neighbourhood scheme be effective at all?
A: This aspect has also been debated at length at the ministry level as well as the Home Affairs Ministry and the police. Residents operating the guarded neighbourhood schemes should be aware that only the police and other legally designated personnel have the authority to stop, seek identification cards or investigate people. Security guards employed by residents have no power to seek identification or stop anyone from entering.
Moreover, from the perspective of land ownership, the guarded neighbourhood scheme is just a normal housing scheme with individual land titles, unlike gated community which is planned as a private property.
Even without stopping or seeking identification, the guards can be proactive by familiarising themselves with local residents and the inventory of residents’ vehicles so that potential intruders can be recognised and monitored. The guarded neighbourhood is just a loose concept to deter criminal activities. After all, guarded neighbourhoods are an “afterthought” ad hoc action, unlike gated communities.
Q: Does majority mean 51%? Wouldn’t that be too small a difference?
A: Mathematically, majority means 51%. In politics, two-thirds majority is often used. The spirit of this prescription is that it should be both fair and realistic.
Selangor has imposed an 80% consent requirement and initially in March, the ministry had proposed a 100% consent requirement before operating the guarded neighbourhood. Following this, the ministry has received many responses and complaints from the public and media saying that this regulation is not logical because it is difficult to get 100% agreement from the residents. There is no law that prohibits a house owner, or a group of house owners, from appointing security guards to oversee their houses. With public welfare and public rights in mind, the guidelines have clearly stated the condition that the majority rule would only apply with undue force or pressure on those residents who do not wish to pay for security services. In other words, those who do not wish to be part of the scheme are not obliged to pay for the expenses.
A: The ministry has no intention to cause unnecessary difficulties to the guarded neighbourhood operation but its objective is to ensure that the guardhouses erected by the residents associations are legal and in accordance with the provision of National Land Code 1965.
This is also to avoid the guardhouses from being demolished by the land office, which has the legal right to demolish buildings which are not in line with the National Land Code.
Q: The guidelines forbid the guarded neighbourhood scheme to be implemented in areas with public facilities but almost every neighbourhood in Subang Jaya and Petaling Jaya has common facilities.
A: As explained, the NCLG has decided that the guidelines approved is only applicable to new guarded neighbourhood schemes. It is not the intention of the guidelines that all neighbourhoods be implemented with the scheme.
Only neighbourhoods that are planned to be mutually exclusive and have communal facilities like those of gated community are practical because they should not have public facilities in their premises. It should also be noted that the majority of the housing schemes outside the Klang Valley do not have boom gates and guardhouses, but only security patrolling in and around the housing schemes. The public are free to use such roads and public facilities.
Q: The attached FAQ states that “legalisation process would not be done immediately and hastily”, so the councils are supposed to let the illegal ones go?
A: What this means is that the illegal erection and installation of guard posts, perimeter fencing, boom gates and oil drums, in existing guarded neighbourhoods shall be dealt with in phases and using case-by-case basis with priority on areas that compromise critical public services like ambulance and fire brigades.
Focus areas also include guarded neighbourhoods that install boom gates, oil drums or other obstruction on public roads, or any other public access that is used by other neighbourhoods and by doing so, cause difficulty and instigate the disturbance of public peace.
Q: Some feel that the guidelines were drawn without consulting the people on the ground, hence some impractical clauses.
A: The fact is that the guidelines have been drawn up in consultation with people on the ground. The study group from the ministry has made extensive consultation with various stakeholders discussing the issues on guarded neighbourhood and gated community.
Within the two-year period that this guideline was developed, consultation with more than 50 groups of stakeholders were made, including Real Estate and Housing Developers’ Association Malaysia, developers, police, academicians, residents associations and the public. Seminars and focus group discussions have also been arranged for and analysed as input to the guidelines. The ministry has also conducted a special study to obtain responses from the public, involving 450 respondents in several local authority areas in the Klang Valley and Penang in formulating the guidelines.
Q: The Guarded Neighbourhood Guidelines forbid the residents to fence up their neighbourhoods but some felt that the fence is an essential part of the scheme to prevent strangers from entering and exiting the neighbourhoods freely.
A: Roads and backlanes in housing schemes are public roads and are accessible to the public. It was because of the change in circumstances pertaining to the security problem, the ministry decided to do something helpful by introducing the guidelines. In the context of liveable and social integrative communities, housing schemes with perimeter fencing or walls that promote social exclusion would not support integrative approaches towards a common cohesive society.
Moreover, fences and walls are aesthetically unpleasing, exude paranoia and can be visually intrusive. A home is not an army camp or a government complex. What would our country be if the whole length and breath of this beautiful country consists of fenced up or walled up neighbourhoods? Will it portray that our country is an unsafe place to live in and that there is no other option to address the safety issue?
Q: The guidelines specify that perimeter fencing is not allowed as it is normally built on road reserve.
A: Residents associations should understand that the construction of perimeter fencing will involve road reserve which, under the provision of National Land Code, is legally under the ownership of the public. Road reserves do not exclusively belong to members of the residents associations in guarded neighbourhood schemes.
Q: The guidelines discourage gated community to be implemented in rural areas, for fear of negative impact and social division. Does the ministry feel that such schemes can cause social division among the people in urban areas? Some felt that the schemes have actually brought the urban residents closer in terms of working hand-in-hand to make the neighbourhood a safer place for all.
A: There are cases that the schemes have brought the residents closer. However, this is mutually exclusive and rarely extend beyond the walls and fences of their neighbourhoods. There are many factors that can bring residents together.
Commons interests in safety (not necessarily walls or fences), such as community policing and community welfare have often brought people together. The timeless and priceless concept of “love thy neighbour” should be re-introduced by creative residents associations. This goes way beyond the need for fences and walls.
Q: Respondents have urged the government to set up a similar administration to the Commissioner of Building to oversee the residents associations in the event of disputes. Can this be done?
A: The guarded neighbourhood scheme operates on houses with individual land titles and not strata titles.
As such, there is no provision of a management corporation as with gated communities under the Strata Title Act 1985. The guarded neighbourhood scheme has sprung out to mirror facilities in a gated community, but still hold the benefits of individual titled land. The management corporation to some extent relieves local authorities from the responsibilities of daily upkeep, maintenance and administration. The ministry has no plan to set up a special administration to oversee the operation of the residents associations in guarded neighbourhoods as at present, the capacity and resources of local authorities are limited and catered for the interests of the wider community.
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