Are gated, guarded communities LEGAL?

SAFETY CONCERNS: Developers are responding to the needs of an increasingly affluent population by providing gated properties.

BY definition, a gated housing development project is a project that has controlled entrances for persons entering the housing estate and leaving.

There is usually only one entrance and exit and the whole housing area is fenced in. That is a true gated community. All other forms of enhancing security in housing estates are deemed as guarded communities.

Gated communities are a worldwide phenomenon and exist to prevent criminals entering the enclave. Another way of describing such communities may be "forting up" to provide refuge from crime. However, what needs to be noted is that, originally, gated communities were meant to keep out the intruders and to safeguard the occupants inside.

Today, in Malaysia, as well as in other nations, the desire for gated and guarded communities is rising due to safety concerns.

People are more and more attracted to housing projects that offer increased security, especially when they are in their homes.

This has caused a surge in development of gated and guarded properties. Property developers are going full throttle ahead in response to the needs of an increasingly affluent population. In this context, the developers are keeping pace with the rapid changes and consumer demands.

Safety and security is a right of every human being. It is natural that people would want to ensure that they are living in a neighbourhood that is safe and provides security.

However, provision of safety and security has always been under the purview of the police. In the last decade, it appears that either the police are stretched beyond their capacity, or the force has not been expanded in tandem with the growing population.

Therefore, the people have resorted to employing their own guards to patrol the housing areas. Residents pay a particular sum of money each month to set up guard posts and to have security guards patrolling the housing area frequently.

Unfortunately, the normal complaint is that some households are paying while others are not, and yet those who are not paying are still benefiting.

The law is clear; you cannot force the residents to pay for the gated and guarded security services. It is up to the individual households whether they want to participate.

Using guards to patrol the area is one thing; to build barriers and vet all entrants into a particular housing estate is altogether another aspect.

The problem that appears is that a residents' association of a housing scheme may not be aware that there are two different guidelines for gated communities and guarded communities.

Many housing estates in the Klang Valley have their areas fenced off with security guards based at the entrances and exits to ensure the safety of the residents who pay a hefty fee for such services.

Guidelines galore

It is not inaccurate to state that a residents' association may well be aware of what they are doing, but choose to either ignore the law, or to blatantly flout the law in the confident hope that they will not be made liable.

The regulations governing gated and guarded communities are laid out in the document GPO22, "Planning Guideline, Gated Community and Guarded Neighbourhood", prepared by the Federal Town and Country Planning Department, Housing and Local Government Ministry (2010).

This guideline was approved by the cabinet on July 28, 2010 and at the 63rd National Council of Local Government Meeting on Sept 2, 2010.

This guideline has to be read together with the provision of existing laws, especially the National Land Code 1965 (Act 56), the Strata Title Act 1985 (Act 318), the Common Property and Building Act (Maintenance and Management) 2007 (Act 663), the Town and Country Planning Act 1976 (Act 172), the Street, Drainage and Building Act 1974 (Act 133), the Road Transport Act 1985 (Act 333) and the Uniform Building By-laws 1984.

The implementation and enforcement of general guideline and specific guideline that are contained in this guideline need to be coordinated with development plans (especially the local plan and the special area plan) that are being enforced at a local planning authority area.

This also needs to refer to policies, circulars, directives and standards that are formulated and enforced by local authorities as a guide to the scope of power that is provided by laws together with other planning guidelines that are formulated by the Federal Town and Country Planning Department, Peninsular Malaysia.

Looking at the various laws and regulations that govern the GPO22, it is evident that the haphazard and rampant setting up of "gated" and "guarded" areas in housing estates are in clear violation of the existing laws.

Under the GPO22, a guarded housing area may provide security control services either with or without a security guardhouse. Guarded patrol, including the installation of boom gates leading into the inner roads manned by full-time guards, are acceptable so long as they do not obstruct the passage to public.

But to completely block roads with iron gates, i.e. roads that were originally and still remain as public roads of passage, is illegal.

Until the apathy of the forces in charge is kindled, more and more housing estates may resort to such illegal blocking of public roads.

In the legal perspective, a guarded neighbourhood can neither have a physical barrier on a public road nor can it enforce any blocked entrance-exit for the residents and the public.

NST