Pinched from The Star, Thursday March 26, 2015 MYT 7:29:55 AM
PUTRAJAYA: The Federal Court has ruled that placing boom gates across public roads and guardhouses in residential areas are legal.
A five-member panel, chaired by Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin, said regulated access to a defined area was not an obstruction in law, particularly if it was for security reasons.
“It is so only if one is denied access to a public place. It is not a barricade that is placed across a public road that denies access altogether to all who wish to enter,” said Justice Zulkefli in his 18-page judgment delivered on March 19.
He said guardhouses and boom gates were authorised structures under the Town and Country Planning Act 1976; the Street, Drainage and Building Act 1974 and the Local Government Act 1976.
The panel dismissed an appeal brought by Au Kean Hoe, a resident of D’Villa Equestrian in Kota Damansara, Selangor, who had commenced legal action against the housing estate’s residents’ association.
Au claimed that the guardhouse and two boom gates built in the housing estate ought to be demolished because they were illegal structures, a nuisance and amounted to an obstruction.
Justice Zulkefli said the Petaling Jaya Municipal Council (MBPJ), as the relevant local authority in the case, was fully empowered to approve the guardhouse with the boom gates in accordance with its guidelines for guarded communities issued by the Urban Planning Department in May 2011.
He said the developer had obtained approval from the council for the guardhouse’s construction.
Justice Zulkefli said both the High Court and the Court of Appeal had correctly concluded that Au’s claim of inconvenience was not an actionable nuisance by the presence of the guardhouse and boom gates.
In August 2010, Au ceased to be a member of the area’s residents’ association and stopped paying maintenance and security charges.
The association issued a circular on Oct 25, 2011, notifying residents that those who had not paid the security and maintenance charges would have to open the boom gates themselves without the assistance of the security guard on duty.
Au subsequently commenced the legal action while the association made a counter claim for arrears of security and maintenance charges and sought an injunction order to restrain him from harassing the association and the security guards at the guardhouse.
The High Court dismissed Au’s claim but allowed the association’s counter-claim and issued the injunction order. Au lost his appeal in the Court of Appeal.
Au was represented by a team of lawyers led by Datuk Malik Imtiaz Sarwar while the association was represented by a team of lawyers led by Datuk Dr Cyrus Das.