AU KEAN HOE V PERSATUAN PENDUDUK D’VILLA EQUESTRIAN [2015] 4 MLJ 204
Federal Court
Coram: Zulkefli bin Ahmad Makinudin, CJ (Malaya); Abdull Hamid bin Embong, FCJ; Ahmad bin Hj. Maarop, FCJ; Zainun bt. Ali, FCJ; Ramly bin Haji Ali, FCJ
Date of Decision: 19 March 2015
Background
The Appellant and his wife are the purchasers and co-owner of a house at No. 7, Jalan Kenyalang 11/5E, D’Villa Equestrian, Kota Damansara, 47810 Petaling Jaya, Selangor. When the Appellant and his wife purchased the house, two boom gates and a guard house were already in place and functioning at the housing estate.
The Respondent is the Residents’ Association (“RA”) of the housing estate which is registered under the Societies Act 1966.
The Appellant was a member of the RA and he was a Treasurer of the RA from May 2009 to March 2010. The Appellant did not object to the boom gates during this period. However, the Appellant ceased to be a member sometime in August 2010 and had since stopped paying the maintenance and security charges
The Respondent then issued a circular notifying the residents that those who have not paid the maintenance and security charges will have to do a self-service entrance to the housing estate.
The Appellant is the only resident out of the 114 residents in the housing estate who objected to the guarded community scheme by the RA. The Appellant commenced an action against the Respondent in the High Court on the grounds of nuisance and that the boom gates were illegal structures that amounted to obstructions in law. The Appellant also sought an order for the alleged obstructions to be demolished. The Respondent on the other hand counterclaimed for arrears of security and maintenance charges and also for an injunction restraining the Appellant from harassing the Respondent and the security guards at the guard house.
Decision
The Appellant’s claim was dismissed by the High Court and the Respondent’s counterclaim was allowed in part wherein the High Court issued an order restraining the Appellant from harassing the Respondent and the security guards.
The Court of Appeal affirmed the decision of the High Court and accordingly dismissed the Appellant’s appeal.
The Appellant obtained leave to appeal to the Federal Court on the following questions of law:
- Whether the erecting of a guard house and a boom gate across a public road in a residential area amounts to an obstruction within the meaning of section 46(1)(a) of the Street, Drainage and Building Act 1974 (“SDBA”); and
- Whether a local government is empowered to authorize or otherwise approve an obstruction within the meaning of section 46(1)(a) of the SDBA.
Commentary
Whether the erecting of a guard house and a boom gate across a public road in a residential area amounts to an obstruction within the meaning of section 46(1)(a) of the SDBA
The Appellant sought to rely on the section 46(1) of the SDBA in contending that the boom gates erected at the housing area are illegal as they constitute an obstruction over a public road. The Federal Court however rightly pointed out that section 46(1) of the SDBA would not apply where the local authority has given approval for the construction that is being complained of. See: UDA Holdings Bhd v Koperasi Pasaraya Malaysia Sdn Bhd & Other Appeals [2009] 1 CLJ 329. In the present case, MBPJ had given approval sometime in the year 2002 for the construction of the boom gates and the guard house.
MBPJ had granted approval to the Respondent based on the layout plan submitted by the Developer of the housing estate for the development. This was in accordance to the relevant provisions of the Town and Country Planning Act 1976 (“TCPA”). The TCPA expressly provides that the local authority is the relevant planning authority for any local area (See: Section 5). In the circumstances, MBPJ clearly had authority to provide approval for the construction of the boom gates and guard house at the housing estate. Furthermore, MPBJ is also empowered under the Local Government Act 1976 to all things necessary for the purposes of public safety, health and convenience (See: Section 101(v)) and the erection of boom gates and a guard house at a housing estate clearly falls within this category.
Given that MPBJ as the local authority had given approval for the construction of boom gates and a guard house at the housing estate for security purposes, the Federal Court correctly enunciated that such construction does not constitute an obstruction in law. A regulated access to a defined area for security purposes cannot be construed as an obstruction as it does not deny access altogether to those who wish to enter the housing estate.
As argued by the Counsel for the Respondent, it is apparent that the Appellant’s action against the Respondent was in actual fact an issue of inconvenience as opposed to obstruction. In this regard, the Federal Court pointed out that balancing an individual’s inconvenience against the communities’ interest is of paramount concern (See: George Philip & Ors v Subbammal & Ors AIR 1957 Tra-Co. 281) and based on this, the Federal Court ruled that the presence of the boom gates and the guard house at the housing estate do not constitute nuisance.
Whether a local government is empowered to authorize or otherwise approve an obstruction within the meaning of section 46(1)(a) of the SDBA
The Federal Court was of the view that the local council is fully empowered to approve the construction of buildings which would include a guard house with a boom gate.
