The legality of blocking public spaces in gated and guarded community schemes after 2007

Abstract

This article examines the issue of legality of gated and guarded community schemes (GACOS) inMalaysia under the existing laws, especially those amended and enacted in 2007. The article looks atthe letter and implication of the existing laws and also examines other issues such as the surrender ofpublic spaces to the local authority, the ownership of the public spaces and common properties as wellas the charges and fees payable by the property owners in the given GACOS, in the state of Penang.The article evaluates the legal texts, examines the data obtained through interviews and questionnairewith and among officers of the local authority, developers, and residents of GACOS. The results of thisstudy showed that the letter of law clearly prohibits any form of blocking of public spaces, while theguidelines issued by the local authority so permits. In addition, the local authority is still requiring thesurrender of these spaces by the developers. It was also found that the residents of GACOS pay chargesimposed by the local authority on top of fees imposed by the developers or management committees.Based on these situations and practices, therefore, GACOS in Malaysia are considered illegal. A reviewof the situation is needed. The policy-makers, in their re-examination of the issue, need to look into theinterest of the people on one hand, and public interest and, therefore, the permissibility of GACOS onthe other. The problem can be solved in two ways. Firstly, amend section 46(1)(a) of the Street,Drainage and Building Act, 1974. Secondly, repeal or amend the guidelines and correct the currentpractices by not requiring the surrender of public spaces in GACOS. Apart from that, charges payableto the local authority must be reviewed.