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BOOM TIMES!

 

A commentary on the case of Au Kean Hoe v Persatuan Penduduk D'Villa Equestrian by Denise Cheong

With the increasing crime rate and growing safety concerns, boom gates have become a common sight in neighbourhoods in the Klang Valley; what was once a through road today may be blocked by barricades tomorrow.

Even with easy access to mobile applications like Waze and Google Maps, drivers in unfamiliar neighbourhoods are often met with dead-ends as these semi-permanent structures go unregistered by these applications. Further, and as many residents are aware, the installation of boom gates often comes with monthly fees, the obligatory halt, and, in the case of non-residents, cursory enquiries as to the reason for their visit, before the security guards raise the barriers to allow a car to pass.

This can be frustrating when one is in a hurry and it would not be surprising if fantasies of driving through the gates unscathed cross the minds of drivers in the queue of cars at the barriers which stand between them and their homes.

Mr. Au Kean Hoe, the appellant in the recent Federal Court decision of Au Kean Hoe v Persatuan Penduduk D'Villa Equestrian [2015] 3 CLJ 277, did just that. In order to understand why Mr. Au did that, we must first delve into the facts of the case.

BACKGROUND

Mr. Au and his wife were the co-owners of a house in D'Villa Equestrian Housing Estate ("the housing estate"). They moved into the house in January 2007.

There is only one entrance and exit road to the housing estate. The developer of the housing estate had constructed two boom gates and a guardhouse on this access road. Until December 2007, the developer was responsible for the security and maintenance, including the two boom gates and the guardhouse, of the housing estate. As such, when Mr. Au and his wife moved into their house, the boom gates and the guardhouse were already in place and functioning.

The respondent in the Federal Court was the Residents' Association ("RA") of the housing estate. Beginning from January 2008, the residents of the housing estate were required to pay RM250.00 per month (subsequently reduced to RM200.00 per month) to the RA as security and maintenance charges. At a meeting held on 21 July 2007, the residents of the housing estate unanimously agreed that those who did not pay the security and maintenance charges would not enjoy the facilities provided by the guards at the boom gates or the security facilities. This included having to raise and drop the gates themselves when entering or exiting the housing estate.

From May 2009 to March 2010, Mr. Au was not only a member of the RA but he was the Treasurer. He took no objection to the boom gates during this period. Mr. Au ceased to be a member of the RA sometime in August 2010 and since then, stopped paying the maintenance and security charges.

To reiterate the decision made at the meeting of 21 July 2007, the RA issued a circular on 25 October 2011 stating that residents who did not pay the security and maintenance charges would have to raise the boom gates themselves without the assistance of the security guard on duty. According to the High Court Judge in the case, the execution of the instructions contained in the circular brought with it the onslaught of the dispute.

One day, Mr. Au returned home in the late afternoon. Frustrated by the security guard's refusal to lift the boom gate for him, and being of the opinion that he had every right to clear the obstruction on the public road, Mr. Au decided to drive through the boom gate. In what must have been an unusual sight, he first placed his car's carpet between the boom gate and his car's windscreen and then drove slowly until the boom gate was sufficiently bent to enable his car to pass through.

Matters did not end there. In January 2012, Mr. Au commenced an action against the RA on the grounds of, inter alia, nuisance and that the alleged obstructions were illegal structures that amounted to obstructions in law. Additionally, Mr. Au sought an order that the alleged obstructions be demolished. The RA counterclaimed for arrears of security and maintenance charges and also for an injunction to restrain Mr. Au from harassing the RA and the security guards at the guard house.

FEDERAL COURT

Although Mr. Au's claim was dismissed in both the High Court and the Court of Appeal, all was not lost as he successfully obtained leave to appeal to the Federal Court on the following questions of law:

  1. Whether the erecting of a guardhouse 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
  2. Whether a local government is empowered to authorise or otherwise approve an obstruction within the meaning of section 46(1)(a) of the SDBA.

Obstruction?

Mr. Au claimed that the guardhouse and boom gates across a public road in a residential area amounted to an 'obstruction' for three reasons. First, he, his family and guests, as well as all other non-paying residents, had to alight from their vehicle to raise the boom gate themselves.

Secondly, the RA, in imposing the operation of the boom gates, was in breach of the Petaling Jaya City Council ("MBPJ") Guidelines and the MBPJ Letter of Approval dated 22 December 2011 in that (i) residents who were not participants of the scheme should not have been obstructed at all from entering their residence at any time; and (ii) the boom gates were permitted to be operational from 12.00 a.m. to 6.00 p.m. but was in fact being operated 24 hours a day (albeit with a security guard present at all times).

Thirdly, the legality of the boom gates remained to be decided as they had not been included in the plans of the guardhouse that were approved by the MBPJ.

In response, the RA contended that the subject of Mr. Au's complaint was not in reality the illegality of the boom gates, but rather, he was seeking to use the issue to obtain an assurance that the operation of the boom gates would not inconvenience him in spite of him being a non-paying resident. The court was therefore invited by the RA to decline to answer the question on illegality.

Legal or Illegal Barrier?

The court did not accept the RA's contention. It took the view that the two questions posed in the appeal which relate to the illegality issue of the boom gates would nevertheless have to be dealt with.

The court did not agree with Mr. Au's contention that the boom gates were illegal in that they constituted an obstruction over a public road.

Instead, their Lordships were of the view that the principal issue to be decided in this case is whether the guardhouse and the boom gates were constructed with the approval of the relevant local authority, namely, the MBPJ. Upon an analysis of the facts and the relevant provisions of the Town and Country Planning Act 1976 ("TCPA"), the SDBA and the Local Government Act 1976 ("LGA"), the court concluded that the guardhouse and boom gates were duly authorised structures under the statutes.

The court referred to UDA Holdings Bhd v Koperasi Pasaraya Malaysia Sdn Bhd & Other Appeals [2009] 1 CLJ 329 where it was held that section 46(1)(a) of the SDBA has no application where the local authority has given approval for the so called obstruction. Their Lordships also noted that a "building" as defined in the SDBA and the TCPA includes a "gate".

As the guardhouse and the boom gates were authorised structures under the TCPA, the SDBA and the LGA, these structures could not be considered to be an obstruction under section 46(1)(a) of the SDBA. Thus, the first question in the appeal was answered in the negative.

The court declined to answer the second leave question as their Lordships were of the view that the question was too general and not based on specific factual circumstances.

A Balance of Inconvenience

The Federal Court then went on to consider the issue of nuisance raised by Mr. Au. The court pointed out that the assumption that the operation of a security gate system in a residential area amounted to an actionable obstruction in law was clearly wrong. The court elaborated that regulated access to a defined area is not an obstruction in law, especially if it is for security purposes whereas the denial of access to a public place would amount to an obstruction.

In the instant case, their Lordships held that in reality, Mr. Au's complaint was one of inconvenience and not of obstruction. According to their Lordships, Mr. Au did not complain that he or his family was prohibited from access at all or that the boom gates were a barricade against him or his family. Instead, his complaint was that he was inconvenienced because he had to engage in self-service to lift the gate. In dealing with this point, their Lordships, relying on a statement by Romer J in Lingke v Mayor of Christchurch (1912) 3 KB 595, were of the view that the underlying rule was a recognition that individuals live within a community and it is always the balancing of the individuals' inconvenience against the communities' interest that is of paramount concern.

Hence the Federal Court agreed with the courts below and found that the inconvenience encountered by Mr. Au by virtue of the presence of the guardhouse and the boom gates was not an actionable nuisance.

Having answered the first question in the negative and decided that the existence of the guardhouse and boom gates were not an actionable nuisance, the Federal Court dismissed Mr. Au's appeal.

CONCLUSION

The perception that law enforcement agencies in Malaysia are ineffective in combating crime, in particular, house break-ins and robberies, has resulted in residents of housing estates resorting to self-help by hiring community security guards and erecting barricades to protect themselves and their loved ones, at some cost and inconvenience to themselves.

The dangers of ill-considered semi-permanent barriers could be fatal. One must not forget the tragic loss of two lives in a fire in 2011 when firemen were delayed from gaining access to a housing area as they had to cut through an unmanned security barrier (The Star, 3 March 2011).

The Federal Court of Au Kean Hoe v Persatuan Penduduk D'Villa Equestrian has made it clear that boom gates which are erected with the approval of the relevant local authority are neither an illegal obstruction nor a nuisance to residents who do not subscribe to the security scheme in their housing estate.

As mentioned by a newspaper commentator in the Star Metro (21 April 2015), this judgment should encourage local authorities to work with communities to ensure safer neighbourhoods. In doing so, local authorities must ensure that safety concerns are properly addressed when they approve the construction of boom gates and barriers. Are "boom times" here to stay?

Writer's email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

SUBJECT MATTER: CASE COMMENTARY

WRITER'S NAME: DENISE CHEONG

WRITER'S PROFILE:

Denise is an Associate in the Dispute Resolution Division of SKRINE. She graduated from the University of Liverpool in 2012.

 
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