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 purposes.
"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 as well as the Local Government Act 1976.
"It cannot be disputed that guarded communities are schemes implemented to improve public safety and security in defined residential areas," he said.
The panel dismissed an appeal brought by Au Kean Hoe, a resident of the D'Villa Equestrian housing estate in Kota Damansara, Petaling Jaya, Selangor, who had commenced legal action against the D'Villa Equestrian 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 City Council (MBPJ), as the relevant local authority in the present case, was fully empowered to approve the guardhouse with the boom gates in accordance with MBPJ guidelines for guarded communities issued by the Urban Planning Department in May 2011.
He said the developer of the housing estate obtained approval from MBPJ for the construction of the guardhouse.
Justice Zulkefli said both the High Court and the Court of Appeal had correctly concluded that Au's claim of inconvenience caused by the presence of the guardhouse and boom gates was not an actionable nuisance.
In Aug 2010, Au ceased to be a member of the residents' association of the housing estate and stopped paying maintenance and security charges of RM250 per month, which was later reduced to RM200.
Au lodged a police report and an online complaint on the MBPJ website after 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.
He subsequently commenced legal action on the grounds of nuisance while the association made a counter claim for arrears of security and maintenance charges and also 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.
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