Abdullah Ahmad Badawi, as the prime minister, can act against the Selangor Menteri Besar for the Bukit Cahaya fiasco because the federal government is vested with powers overseeing the use of land.

Planning lawyer Derek Fernandez said Abdullah has the legal powers to control all land use and make related policies regardless of who the owner is.

He said as chairperson of the National Physical Planning Council (NPPC), a body responsible for macro planning of land use, the premier is empowered to act against any breach of land use policy.

"As NPPC chairperson, he has the power to make immediate policy or act against any breach without even having to revert to the council," he said yesterday when asked to comment on governing land laws.

This is in the wake of the Bukit Cahaya Agriculture Park fiasco which has landed Selangor Menteri Besar Dr Mohd Khir Toyo in hot soup, with a debate on whether the federal government can take over the land.

Crucial distinction

Fernandez also drew a crucial distinction between ownership of land under the National Land Code (NLC) and the Town and Country Planning Act 1976 (TCPA) which specifically regulates the use of land.

"For the purposes of land use, the TCPA supercedes the NLC," he said when met in Petaling Jaya.

"Any attempt to convert land use or change the land status or alienate land without a proper amendment of the structure plan would be contrary to the TCPA," he added.

As for ownership, the lawyer said titles could be issued but the zoning must remain the same.

"In other words, the state has no power to de-gazette land reserved under the NLC unless a public inquiry is held, and in the absence of one, any de-gazetting of a reserve land would be illegal and void," he added.

Hence, he said, the status of forest reserve is retained and no construction or development is allowed except for the purposes of the forest reserve, such as public parks.

Fernandez said in the Bukit Cahaya case, the development would be illegal if all this had not been done.

"The federal government does not have to beg the state for land. All it has to do is enforce the law as it stands. It is also not a matter of a few developers being hauled up in court but for all developers to be held responsible," he added.

Legally empowered

Emphasising the distinction between ownership and land use, he said the premier is legally empowered to direct a state government to comply with policies made by the NPPC pertaining to land use.

"It is mandatory for state governments to prepare a structure plan as legally required reflecting the NPPC policies, followed by local plans that are drawn up by local authorities accordingly.

"Where there is no local plan or planning of land use by the local authority, developers have to obtain a planning permission from the local authority under Section 21 of the TCPA.

"Developers must also submit a development proposal report which is so much more detailed and comprehensive than any environmental impact assessment (EIA) report," he added.

In the report, he said, they must include a detailed description of the land, "a survey of trees and all forms of vegetation" and "particulars of a building".

The provision also requires developers to submit a land use analysis and its effect on adjoining land, detailed layout plans and relevant information as prescribed by the local authority.

"In fact, they must show in the report exactly how the project will affect the neighbouring areas," he said.

This included a public inquiry for neighbouring landowners to raise objections.

He said if a report is not submitted, the planning approval is rendered illegal and the local authority may have acted ultra vires and contrary to law.

"Even state agencies like PKNS (Selangor state development corporation) is not exempted from this requirement. The questions is... was this done in the Bukit Cahaya case? Where are the relevant documents?" he added.

Safeguard land

Fernandez, who serves as legal advisor to several residents associations in Selangor, said the legal requirement for structure and local plans is specifically to safeguard land use from administrative abuse.

"This is why there are provisions under both the TCPA and the NLC for a mandatory public inquiry on any change in a structure plan or any move to de-gazette land respectively."

The public inquiry and the structure plan were additional processes to the environmental impact assessment (EIA) that is required to cover the end stage of the land use, he added.

"There should be no room for ad-hoc planning in both the structure and local plans but that's not how things are right now.

"Where the state government has breached its duty by not preparing a structure plan, the federal government can act immediately.

"Alternatively, citizens can sue the state government and compel it to prepare the structure plan," he explained.

Citing the TCPA as the most powerful land-related legislation, he said it was unfortunate that the provisions have largely been ignored.

In the case of Selangor, he said the requirement for a structure plan has been effective since 1986.

Procedures breached

Decrying the present penalty, fines and sanctions as "wholly inadequate", Fernandez said it only serves to encourage more breaches because it is "cheaper to do so".

He cited a similar case involving Kota Damansara in Sungai Buloh to illustrate the zoning process and the de-gazetting of a forest reserve.

He said the structure plan for Sungai Buloh had come into effect on April 17, 1996 following extensive public inquiry.

"It was to clearly retain and preserve the status of forest reserves. However, procedures have been breached and the local residents are fighting to preserve the green lung," he said.

Currently, forests in this area are zoned as a reserve, for research, water catchment and a cemetery, he added.