Five-foot Ways as Public and Private Domain in Singapore and Beyond (from Journal of Property, Planning and Environmental Law]
Abstract:
This article explores the concept and spread
of the five-foot way (5FW) as an aspect of urban design peculiar to Southeast
Asia. It locates the 5FW as an aspect of planning law and property law that has
been adapted culturally to provide a unique space for public-private
interaction. The article also explores, in a related context, conflicts over
the appropriate use of 5FWs and the issue of regulating such use.
The approach adopted is to look at the
development of the 5FW over the entire colonial period of Singapore, starting
in 1819, up to the present day. Comparisons are drawn from other urban
settlements over a similar period.
The
article finds that the 5FW, with its related device of the shophouse, provided
a uniquely efficacious space for protection of the public from the elements and
for public-private interaction. It finds that regulation of 5FWs should be
undertaken with due regard both to public right of way and to the cultural
element of making private use of the space.
The
originality of the article lies in the fact that the 5FW has not been
considered as an artefact of legal culture in addition to being an artefact of
urban design.
Introduction
Insufficient
attention has been paid to the law in the context of the organisation of urban
spaces in Asia.[1]
This is especially true in Southeast Asia, which has historic urban spaces as
well as sprawling modern cities such as Jakarta (population now exceeding that
of the entire continent of Australia), Bangkok, Manila, and so on. Many of
these, such as the three former Straits Settlements of Singapore, Malacca and
Penang, as well as cities laid out at a similar period under British rule, such
as Kuching, Ipoh, Johor Bahru and Kuala Lumpur, have been deeply affected by
colonial urban planning laws, which have also not been extensively examined.[2]
Both
historically and in the contemporary Southeast Asian city law plays a crucial
role in organising urban space and in preserving historical spaces as social,
cultural, or aesthetic artefacts. Some indeed, like Penang and Malacca, are
designated as UNESCO World Heritage sites.[3] Scholarship
in social sciences emphasises the fact of and the need for survival of the
‘vernacular’ and of communities in spite of the contemporary urban sprawl.
The
design of these historic elements of built environment, including spaces, owes
much to colonial urban planning under British rule, influenced as it was by
British or other colonial urban design cultures as well as social, economic and
political factors.[4]
That the models adopted in these cities have survived the test of time (at
least two hundred years in some cases such as Singapore[5]) shows
that they remain not just an aspect of heritage but have been functionally
relevant as well as socially and culturally adapted to Southeast Asia’s
post-colonial world. They have also been sites for contestation between subject
peoples and colonial governments, as Brenda Yeoh’s work has shown.[6] They
are in short living built heritage. And there is no better example of this than
the five-foot way that is the modest subject of this article.
The ‘kaki lima’ or five-foot way (5FW) is a
unique concept in Southeast Asian urban design, which has spread to several
places across Asia, not just those that were British colonies (e.g., Xiamen in
Fujian province, China, and Manila). The 5FW, introduced by Stamford Raffles
under the Jackson Plan in Singapore in 1822 or 1823,[7] is a
very simple but effective concept. It is a pedestrian walkway which runs along
the frontage of adjoining buildings in a street, overhung by the second floors
of those buildings, which are supported by columns along the highway side of the
5FW, each placed at the limit of the individual tenement and fronting the
street, creating a colonnade, or, in 19th century usage, a
‘verandah’.[8]
Shophouses are carefully described by Singapore’s
Urban Redevelopment Authority (URA) as follows:
narrow, small-scale terraced
houses that are used for both work and dwelling and offer heat and rain
protection for the passing public … [they are] typically two to three storeys
high, are built in contiguous blocks bounded by a grid pattern network of roads
and backlanes … and share party walls. [The shophouse] provides facilities for
business premises on the ground floor and residential accommodation on the
upper storeys – an ideal unit for small-scale, family-based commercial
operations … the upper floors of the shophouse are accessed through the open
door-front on the ground floor or from side stairs leading from the five-foot
way.[9]
The
benefits of the 5FW are as many as they are obvious. The pedestrian is sheltered
from the sun and rain – factor of great importance in Southeast Asia with its
hot sun and torrential rainstorms. She may view shops and restaurants under
cover while proceeding along the street. Crucial living space in crowded areas is
saved due to the projection of the buildings’ upper floors. The 5FW is both a highway
for the pedestrian public to ‘pass and repass’ (to use traditional common law
terminology[10]),
and social space for interaction between shopkeepers, restaurateurs and the
public, or for the benefit of local residents. Moreover 5FWs can be easily lit
at night without resort to lampstands. Some, in the author’s own observation,
are even endowed with ceiling fans provided by the adjoining owner. In practice,
as anyone who has been to Southeast Asia will know, the 5FW is also used for
maximising private space, usually for profit. It is usual, although not always wholly
acceptable, for the 5FW to be used for almost any activity - repairing
motorcycles, display of merchandise, stacking garbage, providing extra
restaurant tables, selling motor insurance or lottery tickets, frying noodles,
or executing one’s homework – to name but a few examples observed by the author
in recent years. In 19th century Georgetown and even up to 2000 they
were used for jagas (guards,
invariably Sikhs) to sleep on their charpoys
(string beds). In the Hokkien (Fujian) Chinese dialect, trades known as gho kha ki[11]
trades are those carried on in 5FWs. As Limin Hee and Giok Ling Ooi have
explored, the 5FW has often been a contested space due to overcrowding and a
general lack of city planning, historically speaking at least, in Singapore:
most of the time, these
walkways did not actually serve pedestrians because they were privatized and
often used as additional storage or retail display space. More often than not
pedestrians had to spill over to the already crowded streets and their traffic.
The verandah thus became a strongly contested terrain, its municipal definition
as planned circulation space constantly frustrated by business, communal and
social activities. While events such as the ‘verandah riots’ of 1887
represented dramatic conflicts over the use of these spaces, the daily
contestations tempered the colonial municipal vision of an orderly city.[12]
Despite
the policy of locating traders, especially food-hawkers, to custom-built food
courts and similar relocation policies, habitual usages even now often impede
the 5FW’s use as a public passageway. On the other hand, such spillage of
private into public space also makes for a characterful and colourful
spectacle. Many 5FWs have charm (see the photographs at the end of this article),
and where they are not present, as in the very oldest parts of Malacca, their
absence is sorely felt by modern residents and visitors, dodging traffic in the
street and avoiding sun and rain to circumvent closed off ‘verandahs’, there
being no other means of passage.
As such
the 5FW is uniquely deserving of both study and preservation as an aspect of
living the Southeast Asian culture. It is, for example, carefully buttressed by
steel scaffolds during Singapore’s Mass Rapid Transit expansion around Jalan
Besar, in case of damage to shophouses and injury to the public from vibration
and piling. Documentation issued by Singapore’s URA explains much to owners of
old shophouses about the importance of 5FWs.[13] 200
years of development have in no sense reduced the utility of the 5FW. It has
been adapted and increased in size for modern streets of office blocks, and can
be found even at the upper floors of markets and shopping precincts. Suburban
Johor Bahru in Malaysia displays numerous examples of shophouse precincts with
5FWs constructed within the last two or three years.[14] These
are essentially no different from those built in early 19th century
Singapore. ‘Five-foot’ is of course an approximation based on Raffles’ original
instruction; in practice the five feet may be larger or smaller depending on
local needs. Indeed by a regulation of 1908 the Municipal Commissioners in
Singapore already expanded the 5FW to a seven-foot way, and, such was their
belief in this design that they even imposed the creation of such ‘7FWs’ as a
condition for submission of any new building plan.[15] By-Law
121, made under the Municipal Ordinance,[16]
stipulated that any person ‘who shall erect a building which abuts on a street
or road shall provide a verandah-way or an uncovered foot-way of the width of
at least seven feet’.[17]
Of course
the preservation of this special space depends on the preservation of the
buildings that define it, as the URA has constantly stressed.[18] Nowadays,
URA policy in Singapore provides for preservation of 5FWs just as it provides
for the preservation of old shophouses.[19] The
two are inextricably intertwined and in many ways mutually dependant as we will
see.
Origins
The origins of the 5FW are probably less
important than its claim to longevity. Still, if we claim that it is uniquely
Southeast Asian, that claim needs to be explained and substantiated.
Raffles may well have introduced the 5FW in
Singapore having seen it in Dutch Batavia (modern Jakarta) when he was Governor
of Java (1814-18: he arrived in Singapore in 1819). It is also possible that it
has origins in Southern Europe (Spain, Italy), which have a similarly hot
climate to Southeast Asia. Indeed in the Spanish empire, attempts were made to
predetermine aspects of city planning by legislation; the Spanish Law of the Indies of 1542 provides at
Ordinance 115:
Around the plaza as well as
along the four principal streets which begin there, there shall be arcades, for
these are of considerable convenience to the merchants who generally gather
there; the eight streets running from the plaza at the four corners shall open on
the plaza without encountering these arcades, which shall be kept back in order
that there may be sidewalks even with the streets and plaza.[20]
There is an interesting difference with the 5FW.
The ordinance indicates that the ‘arcades’ are for the convenience of the
merchants, and not necessarily for passage, since there would be a separate
sidewalk for pedestrians. It may be that this early Spanish concept in urban
design avoided the constant conflicts over use of 5FWs in areas coming under its
British equivalent. At the same time, the utility of the Spanish design to the
public would have been reduced compared to the 5FW.
However, the 5FW could have its origins in
Southern China, which also shares a tropical climate with SE Asia. Plausibly
(and this is the view the author prefers, although we will probably never know
for certain) it could have been brought to Batavia by Southern Chinese migrants
from Fujian or Guangzhou and been adopted (or perhaps merely allowed?) by city
authorities there. Raffles may well have seen it as the simple but effective
design it is and adopted or encouraged its use in Singapore as Chinese migrants
arrived in the early 1820s and beyond. As with most things associated with
Southeast Asia, its origins probably lie outside the region, but its uniquely
Southeast Asian nature is attributable to the way in which it has been
culturally adapted to Southeast Asia and has persisted to this day. The concept
spread rapidly from Singapore through British colonies, especially Georgetown, Penang,
and later other urban centres in Malaya such as Ipoh, Johor Bahru, Kuala
Terengganu, and further afield in Sarawak’s capital city, Kuching, Jesselton the
capital city of North Borneo (modern Kota Kinabalu/ Sabah), and Brunei, all on
the island of Borneo.[21]
It is found even in quite small settlements in Peninsular Malaya such as Kuala
Pilah in Negri Sembilan and tiny Yong Peng, a one-street Foo-chow (Fuzhou) Chinese
town in Johor. Wherever the Chinese settled under British rule, invariably in
urban or semi-urban settlements, the shophouse and the 5FW inevitably followed.
Malacca on the other hand has few 5FWs due to it having been largely laid out
in earlier colonial times before the 5FW became fashionable; nonetheless, as
elsewhere, 5FWs may be found in its newer (i.e. early 20th century)
Chinatown streets.
On his return to Singapore in 1822, Raffles was
disturbed by the laissez-faire manner in which the new colony had grown up, and
instituted concerted town planning in the form of the Jackson Plan, which defined ethnic areas and laid out the city on a
grid basis.[22] This
‘Plan for the Town of Singapore’ was made by a committee and named after its
chair, Lieutenant Philip Jackson, land surveyor and engineer of the colony.[23]
This grid plan had a number of useful functions. It made efficient use of
space, which was important in a busy, commercial port city. It allowed for more
light, for more air to circulate, and improved public health in areas that
would be densely inhabited. 5FWs can be effectively air tunnels creating a
welcome breeze. The main advantages of the 5FW system, according to Raffles,
were ventilation and scavenging (refuse collection).[24]
Reserving wide streets between the 5FWs for vehicular traffic was a safe and
efficient means of providing for trade and communications. In a sense the 5FW
provided a useful trade-off, because these wide streets were unprotected from the
elements; the public could escape the traffic and enjoy the advantages of the
mixed-use 5FW. The danger of accidents involving pedestrians, as motor vehicles
became more common, was slight: kerbs and pillars would normally prevent a
vehicle from entering the 5FW at all. Nowadays, in modern Singapore, road
verges are often full of trees that overhang the road, providing protection for
the road and its traffic, as well as growing tall enough to avoid the tops of
the largest vehicles.
Of course one might also see, in this clinically
clean-lined form of planning, evidence of a colonial,
enlightenment-thinking-driven obsession with mathematical precision as good for
both body and soul. If one does, the attitude in question has also a strong fit
with the clinical tidiness of modern Singapore’s highly regulated
thoroughfares. It made a strong statement about the superiority of orderly British
government over chaotically inductive Asian urban pluralism, emphasising not
just economic efficiency but social improvement too. In this way, Asian urban
design traditions were, according to Robert Home, deliberately ignored;[25]
yet the vernacular certainly fought back, resisting the attempts at
rationalising its behaviour.[26]
Still, one wonders if Raffles and Jackson considered the 5FW to be culturally
relevant to the Chinese population at least. It may even be, as is argued
above, that they culled the 5FW itself from observation of spontaneous Chinese
migrant housing. In one respect at least this British town planning did ignore
a culturally relevant factor, namely the traditional air well of Chinese
houses, which one can see often in (pre-Raffles) Malacca, but not in the Singapore
of Raffles’ time and immediately following, although it appears in some later versions
of the Singapore shophouse. Given the consideration given to public health,
this is odd: the air well provided light and air in what would otherwise be the
dark and dank rear and middle areas of the shophouse, where members of the
shopkeeper’s family would be housed.[27]
The British Empire was not exactly acquired in
what Churchill famously alleged as a ‘fit of absent-mindedness’. Nonetheless it
was extremely messy in terms of what we might call constitutional and legal status,
depending largely on the modes of imperialism preferred by local officials on
the basis of creating some kind of contextually salient legitimacy. Accordingly,
even the status of the Crown varied greatly across the empire’s numerous
categories of imperial presence. When it came to urban planning, however, and
the regulatory laws that were introduced, standard positions did ultimately emerge,
even if they were often ignored or departed from radically, as one might
expect, in the actual implementation locally. Robert Home shows how, across the
world from the American colonies to Australia, Asia and Africa, a ‘Grand Modell’
was developed by Lord Shaftesbury and others from the Restoration (1660s) period
(the same period as Wren’s rebuilding of the City of London and St Paul’s
Cathedral) and then changed over time up to the 20th century to deal
with new circumstances. This model was sufficiently dirigiste in some areas
that the grid pattern was modified by introducing diagonal streets to make the
town plan look exactly like a Union Jack: that is quite an imperial statement.
It tended to transcend the constitutional and even geographical particularities
of the city or town in question, even if it failed to replicate the highly
centralised, regularised, bureaucratic approach of the Spanish empire in South
America. In Singapore,the grid plan of Lieutenant Jackson was modified somewhat
by the irregularity of the island it sought to control. Even the Spanish laws
recognised that locality might demand some modification. Asia differed from
South America in that, in general urban centres, they were populous and highly
developed before the arrival of European powers. Singapore is an exception in
this regard, and Raffles had a much freer hand than many other colony-planters.
In Asia one function of this type of urban
planning was to divide the various ethnic groups from each other.[28]
This can still be easily seen in the street names of downtown Singapore[29]
such as Bencoolen Street, Hong Kong Street, Arab Street, Armenian Street, Bugis
Street, and so on. Bencoolen Street, for example, was inhabited by Bengkulu
people who followed Raffles to Singapore after he was Governor of Bencoolen in
Sumatra.[30]
The 5FW may be seen not just in Chinese areas; it is prevalent in Little India
around Serangoon Road, and in parts of Kampong Glam, which is a traditionally
Malay area.
The Jackson
Plan divided Singapore into ethnic subdivisions[31]
and laid out the new colony in the familiar grid pattern, at least as far as
the contours of the island permitted. Four areas were delineated: a European
town for Europeans, Eurasians, Jews, Armenians, and wealthy Asians (i.e., those
referred to by Raffles as ‘respectable’) - this area corresponding to modern
downtown Singapore’s civic and heritage district; a Chinese kampong (modern
Chinatown); Kampong Chulia (modern Little India) for ‘Indians’ or South Asians;
Kampong Glam for Muslims, primarily Malays and various Arab or other Muslim
groups.
The shophouse itself was well adapted to the
economy and culture of the 19th and early 20th century
Straits Settlements. The influx of females mitigated an overwhelmingly male
demography, introducing eventually family life and children.[32]
The shophouse and its 5FW offered an opportunity to combine the public presence
of the family business with the need for the privacy of growing families. This
made a useful contribution to the survival and adaptation of the 5FW to more
modern conditions. It was good for business but did not expose the privacy of
the family to unwelcome invasion by the public.
During the 19th century planning laws
and policies were developed further, making as we have seen copious use of the
power of the Municipal Commissioners and, later, the Singapore Improvement
Trust, to make by-laws. This process was carried to a logical conclusion under
Singapore’s post-independence government, which, via the URA, stressed even more
the benefits of good planning and strict laws enforcing planning policy. By the
1980s the issue had become one of preservation rather than use of 5FWs.[33]
The policy of segregation was reversed. In modern Singapore the ethnic groups
would be homogenised in HDB estates and kampongs (villages of Malay attap houses) would be done away with.[34]
Regulation
This leads us inevitably to the issue of regulation.
Strictly speaking, in law the 5FW is normally
within the freehold of the tenement adjoining the highway, and the public has merely
a right of way over it (that is to say, as we have seen above, merely the right
at common law to pass and repass). The 5FW offers a legally suitable means of
providing for public access. It offers a useful compromise between public and
private uses. It facilitates support for the upper levels of the shophouse,
providing extra living space that would not otherwise be available, and safety
for the public passing below. As a matter of observation, however, in actual
social usage the 5FW is treated as a shared rather than public space (see photographs).
Even in modern, highly regulated Singapore it is common to see restaurant
tables in the 5FW as well as many other private uses.
This in turn raises the issue of what constitutes
the pubic right and when it is contravened by an obstruction. The right the public
enjoys in practice at common law is for its ‘passing and repassing’ not to be
completely obstructed, as indicated by the House of Lords in DPP v Jones and Another.[35]
In leading tort text Clerk and Lindsell the
current state of the common law as to the question of use of a public right of
way is summarised in these terms:[36]
The right of the public in
respect of a highway is limited to the use of it for the purpose of passing and
repassing and for such other reasonable purposes as it is usual to use the
highway; if a member of the public uses it for any other purpose than that of
passing and repassing he will be a trespasser.
This passage was cited with approval by Lord
Irvine in DPP v Jones. His Lordship
set out the limits of this right in the following terms:
The
question … is whether the law today should recognise that the public highway is
a public place, on which all manner of reasonable activities may go on. For the
reasons I set out below in my judgment it should. Provided these activities are
reasonable, do not involve the commission of a public or private nuisance, and
do not amount to an obstruction of the highway unreasonably impeding the
primary right of the general public to pass and repass, they should not
constitute a trespass.
On
this basis it is not at all certain whether appropriation of a 5FW for use by
the landowner or his tenant that would not
actually obstruct the public in the exercise of its right of passage would
be unlawful. The matter remains to be tested in the courts in Singapore.[37] In other words (for
example in the local context of Singapore and other 5FW settlements) the
pedestrian may have to thread her way around tables, step over parts of
motorcycles, avoid stacks of cartons, fridges, and so on, but complete obstruction is rare these days,
and would not normally be tolerated officially or unofficially. The result,
even in Singapore, is a sense of chaos that might be seen as either charming or
inconvenient, depending on one’s point of view. An exception that becomes
increasingly common is the renovation of shophouses,[38]
where it may be necessary on a temporary basis to block off access to the 5FW
while renovation is being carried out, as a matter of both convenience for the
contractors and safety for the public. In this usage the 5FW pillar,
historically often used for Chinese-character advertising or hanging menus or
calendars, is used to hang a curtain of tarpaulin or the like, preventing dust
and signalling the pedestrian to walk around the cordoned-off area.
From this it is clear that social usage in Southeast
Asia does not exactly conform to the binary notion of public and private rights
(i.e., public rights over private property) that the common law espouses and
has found convenient in the observance over many centuries in England. Rather,
in Southeast Asia, the line between the two is fuzzy and shifts according to
circumstances, or according to how far the private owner feels able with
impunity to make use of or impinge on the public right of way. From time to
time, attempts are made to ‘clear’ 5FWs. ‘Local authorities must ensure’,
pontificated one urban guru in a Malaysian newspaper in January 2016, ‘that
their building inspectors clear the five-foot ways of obstacles. Those not
familiar with five-foot ways and how these are misused, are encouraged to take
a walk along Campbell Street in Georgetown, Penang’.[39]
Given the funding pressures on Malaysian local authorities, this is highly
unlikely to occur on any consistent or ongoing basis, or perhaps even at all.
Much the same could be said about Singapore’s Little India, where the
authorities have succeeded in controlling alcohol sales and consumption
following a riot of migrant workers in 2013.[40]
They could similarly regulate the use of 5FWs but presumably choose not to do
so. The issue of regulating 5FWs is certainly one known to the URA.[41]
Officially, public authorities tend, not
surprisingly, to take a rather more clear-cut position than they do in their actual
practice. Attempts have sometimes been made to force shopkeepers to clear the
5FW completely. Such attempts were made in Singapore in 1888, prohibiting food
hawkers from using 5FWs, leading to the so-called ‘Verandah Riots’.[42]
Regulation has not been very much in evidence since then. The author also witnessed
an ugly incident in Shanghai in 2005 in which truckloads of police forced
shopkeepers in the old part of the city to remove their goods from the street.
The shopkeepers clearly thought they had a right to use the sidewalk in this
way and some, violently resisting the police, were arrested. Later visits
indicated that the behaviour of shopkeepers had not been in the least affected in
the longer term by this police action. This is similar to the outcome in
Singapore in the 1880s.[43]
More recently in an incident over Chinese New Year in February 2016 in Hong
Kong, known as the ‘Fish-ball Riot’, the authorities broke up a customary
practice of selling fish-balls on the street at Chinese New Year.[44]
This did not relate specifically to 5FWs, but it is an illustration of how
customary usage can contradict or modify the effect of statute law, creating
tension between police and local communities. A study of Singapore’s Little
India indicates similar conflicts (between arcade managers and shopkeepers) at
a more modest level of outrage. An Indian retailer complained to researcher TC
Chang: ‘[the owner] won’t allow me to have my wares spilling out on to the
pavements. This is the typical Indian way of selling things but what do they
know about Indian customs?’ Not everyone complies: ‘As a means of unleashing
their Indian way of life, these merchants deliberately spill their wares beyond
prescribed boundaries …’; the management is described as ‘all professional
“doctors or lawyers” … completely out of touch with the Indian common folk’.[45]
One might add that the tendency for wares to spill out into 5FWs is not
confined to the Indian community, much as the latter views this as an Indian
custom.
When we decide on preservation of the built
environment, we might well then ask, are we preserving bricks and mortar, or
are we preserving an existing way of life, an aspect of ‘the vernacular’? Clearly
there needs to be some regulation, but this should not mean securing the
removal of everything that is private from the public right of way. Rather it
should merely ensure that passage is not seriously impeded. Such accommodation
tends to preserve the vernacular and the charm of these areas, while
maintaining the purpose of the right of way.
Heritage Preservation and Planning Law
The other relevant aspect for 5FWs from a heritage
point of view is planning law.
Modern planning laws on the British pattern date
from the early 20th century.[46]
In a real sense the Jackson Plan is a
precursor of these laws, with its insistence on the primacy of state
regulation, and attention to use-zoning, economic viability, and public health.
British officials such as CC Reade, who worked in Malaya 1921-9, were able to
experiment with these laws, and planners in England itself were interested in what
could be learned from Malayan/ Straits Settlements experience as the
planning-law bandwagon moved uncertainly forward in the first half of the 20th
century.[47]
The objectives of these laws were primarily
social and economic, and they were not specifically aimed towards heritage
preservation except where religious buildings were involved. The Bombay Town
Planning Act 1925, for example, used this formula when laying out
planning powers: ‘the preservation of objects of
historical interest or natural beauty and of buildings actually used for
religious purposes or regarded by the public with special religious
veneration’. Given that shophouses and 5FWs enjoyed their heyday probably as
late as the 1930s-50s and at that stage were awarded neither religious nor
historic significance, they would not have been be protected by such provisions.
Currently planning is dealt with under the
Planning Act,[48]
which enables Master Plans to be formulated under section 6. Under these plans,
from around 1980, the URA increasingly embraced urban heritage preservation,
and the traditional shophouse is now seen as a specific target for preservation
as part of Singapore’s cultural heritage as well as for safety reasons, having
regard to their age and possible fragility.[49]
In URA documentation ‘colonnaded five-foot ways’ are labelled as integral to
the shophouse design, as we have seen above. It is worth noting here that this
extends not just to the social and economic function of the 5FW but also to its
aesthetic value:
The five-foot way paving ...
is commonly finished with traditional finishes such as plain cement screed,
terracotta tiles, clay tiles, cement terrazzo, mosaic, marble-chip terrazzo or
granite slab. Tile patterns used on the five-foot way are sometimes repeated on
the front wall of the shophouse either ending as a skirting or under the window
to form a decorative wall.[50]
Thus in the Singapore planning regime the shophouse
and the 5FW in all old areas of Singapore are strictly preserved even in
aesthetic details, both externally and internally. This regulation is
accompanied by extensive advice to owners on structural and heritage aspects.
Conclusion
The 5FW, like most things characteristic of
Southeast Asian culture, may not be uniquely Southeast Asian in origin (of this
we remain unsure), but is an interesting example of the way in which in the local
culture of the region, social usage, and understanding may wrap around an
artefact, including a legal artefact, to produce something that is,
nonetheless, characteristic of the region and unique in some ways.
In this paper I have used the 5FW as an example
having salience both in law and in social usage. More generally we need to know
much more about the effectiveness of laws on urban planning and conservation.
Many relevant laws in Southeast Asia are survivals from Dutch or English legal
precedent circulating across the world. They have been constantly reformed and
retooled in Europe to provide sophisticated instruments for avoiding conflict
and encouraging good decision-making. Asia’s cities are expanding at a
phenomenal rate. It seems inherently unlikely that current laws are adequate (Singapore
may well be an exception) to cater for the conflicting demands of development, transport
infrastructure, and preservation of the precious social and built heritage of
this region. Legal scholarship needs to embrace this field in an
interdisciplinary manner and encourage integrated and effective solutions to
these problems. In this we can learn much from the history and survival of the
5FW as an example of the preservation of social value. The regulation of 5FWs
remains an issue as it has been ever since they began to be constructed. It is
suggested that the best approach to this issue is to regulate in a sensitive
fashion that allows reasonable private use conditional on maintenance of the
public’s right of way. This admittedly is a fine line to draw, but the charm of
the old areas of cities with 5FWs would likely not survive a rigid approach to
regulation that prohibited any private uses.
APPENDIX
1. Singapore 5FW with
clutter
2. Illegally blocked 5FW
in Little India, Singapore
2. Formal historic 5FW,
Jinriksha Station, Singapore
4. Decorated 5FW as
hotel entrance, Tanjong Pagar, Singapore
5. Historic shop houses
near Chinatown, Singapore
6. 5FW with fans and
lights, Singapore
7. Modern wide 5FW,
Singapore
8. Very cluttered 5FW,
Xiamen, PRC
9. Colourful 5FW, Kuala
Pilah, Malaysia
10. 5FW with Chinese
characters, Johor Bahru, Malaysia
[1] Jack Tsen-Ta Lee (2015), “We
built this city: Public participation in land-use decisions in Singapore” 10:2 Asian Journal of Comparative Law 213.
[2] For notable exceptions, see Robert
Home (2008), Of Planting and Planning:
The Making of British Colonial Cities, Chapman Hill, London; (chapter 8
looks at the evolution of planning law in the colonies); Brenda Yeoh (2003), Contesting Space in Colonial Singapore:
Power Relations and the Built Environment, NUS Press, Singapore. The latter
looks (ch.7) at inter alia disputes over the use and definition of ‘verandahs’,
i.e., 5FWs.
[4] Home, above n.2, chapter 3.
[5] Construction of new shophouses
with 5FWs stopped in Singapore in the 1960s, so that the 5FW coincides almost
precisely with its colonial history, but it continues unabated elsewhere, e.g. in
nearby Johor Bahru. See also below, n.14.
[6] Above, n.2.
[7] “Plan of the Town of Singapore
by Lieut. Jackson” (1822 or 1823), reproduced in 42:1 Journal of the Malaysian Branch of the Royal Asiatic Society (1969),
at 200; see also HF Pearson (1969), “Lt. Jackson’s Plan of Singapore” in the
same issue at 161, and in Mubin Sheppard (ed) (1984), Singapore: 150 Years, Times Books, Singapore, 153, at 150.
[8] The word veranda (or verandah)
contains an important ambiguity that may even have led to confusion about the
purposes of 5FWs. Derived from a Hindi word meaning balustrade, it can,
according to the OED, mean ‘a roofed platform
along the outside of a house, level with the ground floor’; or ‘a roof over the
pavement in front of a shop’. The later usage describes the 5FW, and is
regular in Australia and New Zealand. ‘Covered footway’ and ‘colonnade’ were
sometimes used as alternatives.
[9] URA, ‘Understanding the
shophouse: More than an arcade’, Conservation Technical Leaflet (undated
Singapore).
[10] This is discussed further below in connection
with regulation of 5FWs.
[11] Singapore Archives and Oral
History Department (1985), Five-foot-Way
Traders, Singapore. ‘Kha ki’ is derived from the Malay ‘kaki’ (foot).
[12] Limin Hee and Giok Ling Ooi
(2003), “The politics of public space planning in Singapore”, 18:1 Planning Perspectives 79, at 85-6. See
also Yeoh, above n.1; Singapore Archives and Oral History Department, above
n.11.
[13] See https://www.ura.gov.sg/uol/about-us/our-work/protecting-identity.aspx (accessed 12 October 2017).
[14] For the origins and spread of
the shophouse, see Jon S. Lim (1993), “The ‘shophouse Rafflesia’: An outline of
its Malayan pedigree and its subsequent diffusion in Asia”, 66:1 Journal of the
Malaysian Brnach of the Royal Asiatic Society 47.
[15] This regulation, or its
successor, was clearly controversial, and was the subject of a successful
mandamus application, cutting down in effect the scope of the regulation, in
1937 in Municipal Commissioners v Syed
Abdulrahman bin Shaikh Alkaff & Ors [1937] MLJ 183, attracting also in
the process the clear disapproval of a majority of the appeal court judges.
[16] Cap.135.
[17] For the legislative history, see
the judgment of Terrell CJ in Syed
Abdulrahman, above n.15. In a new
development in Tanjong Pagar, one of Singapore’s most historic districts, the
ways are, as observed by the author, as much as 10 feet wide.
[18] Above n.13.
[19] For URA conservation guidelines,
see https://www.ura.gov.sg/uol/guidelines/conservation/Conservation-Guidelines.aspx (accessed 12 October 2017).
[20] See, further, AI Mundigo and DP
Crouch (1977), “The City Planning Ordinances of Law of the Indies Revisited.
Part One: Their Philosophy and Implications”, 48:3 Town Planning Review 247.
[21] See Lim, above, n.14,
[22] CM Turnbull (2009), A History of Modern Singapore, 1819–2005, NUS Press, Singapore, at 39. Cities were ‘laid out’ but not
‘planned’. The difference in usage is significant: see Home, above n.1, at 2.
However, town planning ‘missionary’ CC Reade, who pioneered modern town
planning in the British colonies, derived inspiration, he claimed, from, inter
alios, Raffles: ibid., at 154.
[23] Above, n.7.
[24] Home, above n.1, ch.7.
[25] Ibid.
[26] Yeoh, above n.1.
[27] Home, above n.1, ch.7.
[28] Home, above n.1, ch.7.
[29] HT Haughton
(1984), “Native names of streets in Singapore”, in M Sheppard (ed), Singapore: 150 Years Times Books, Singapore,
at 208; VR Savage
and B Yeoh (2013), Singapore Street Names: A Study of Toponymics, Marshall
Cavendish Editions, Singapore.
[30] See http://eresources.nlb.gov.sg/infopedia/articles/SIP_174_2005-01-25.html (accessed 12 October 2017).
[31] Although the ethnicity of these
areas may be observed even today, it seems clear that Raffles’ delineating
factor was essentially more economic than ethnic: Home, above n.1, at 119-121.
[32] Turnbull, above n.22, at 87.
[33] See https://www.ura.gov.sg/uol/conservation/vision-and-principles/brief-history (accessed 12 October 2017).
[34] Turnbull, above n.22, at 301-2.
[35] [1999] 2 AC 240
[36] M Brazier (ed) (1995), Clerk and
Lindsell, The Law of Torts, 17th ed., Sweet and Maxwell, London,
para17-41.
[37] For a Malaysian example of the
adaptation of the law of highways to social facts, see Au Kean Hoe v Persatuan Penduduk D’villa Equestrian [2015] 4 MLJ 204, Federal Court. In this case
a boom gate and security apparatus protecting a gated estate was held not to
constitute an obstruction of a public highway.
[38] See URA site, above n.13.
[39] “PJ puts pedestrians first”, The Sun Daily, 16 January 2016: http://www.thesundaily.my/node/344799 (accessed 12 October 2017).
[40] “Little India riot: One year
later – the night that changed Singapore”, Straits
Times, 6 December 2014: http://www.straitstimes.com/singapore/little-india-riot-one-year-later-the-night-that-changed-singapore (accessed 12 October 2017); Daniel
Goh (2014), “The Little India riot and the spatiality of migrant labour in
Singapore”, Indo-Pacific Review, 8 September
2014; G Radics and S Dorairajoo (2017), “Post-Colonial legacies, global
economy, and local fissures: Singapore’s Little India riot and the Public Order
(Additional Temporary Measures) Act” (unpublished article on file with the
author).
[41] Personal communication with URA
official, June 2016.
[42] B Yeoh, above n.1, at 254.
[43] Ibid.
[44] ‘Hong Kong police fire warning
shots during Mong Kok fish ball “riot”’, CNN 8 February 2016: http://edition.cnn.com/2016/02/08/asia/hong-kong-riots-shots-fired/ (accessed 12 October 2017).
[45] TC Chang (2000), “Theming
cities, taming places: Insights from Singapore”, 82: 1 Human Geography, 35, at 49.
[46] Andrew Harding (2003), “Planning,
environment and development: A comparison of planning law in Malaysia and
England” 5:4 Environmental Law Review
231.
[47] Home, above n.2, at 161.
[48] Revised Edition of the Laws,
Cap. 232.
[49] Above n.33.
[50] Above n.13.
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