Au Kean Hoe v Persatuan Penduduk D Villa Equestrian

Transcription

1 Au Kean Hoe v Persatuan Penduduk D Villa Equestrian FEDERAL COURT, PUTRAJAYA CIVIL APPEAL NO: 02(f) 50 08/2013(B) ZULKEFLI AHMAD MAKINUDIN CJ, ABDULL HAMID EMBONG FCJ, AHMAD MAAROP FCJ, ZAINON ALI FCJ, RAMLY ALI FCJ 19 MARCH 2015 [2016] 1 CIDB-CLR 31 The Appellant and his wife purchased a house in a guarded, gated housing estate ( the housing estate ) in When the Appellant and his wife moved into the estate in January 2007, the Developer of the housing estate had already installed in the estate, boom gates and a security guardhouse. The Developer was responsible for the security and maintenance including the boom gates and the guard-house until December From January 2008, the residents of the housing estate were required to pay monthly charges for the security and maintenance. In July 2007, the residents agreed that those who refused to pay the security and maintenance charges would not enjoy the facilities provided by the guards at the boom gates or other security facilities. The Appellant joined the estate s Resident s Association ( RA ) and became its Treasurer from May 2009 to March During this period, the Appellant raised no objections to the boom gates. The Appellant left as member of the RA in August 2010 and stopped paying the maintenance and security charges. On 25 October 2011, the Respondent issued a circular signed by the Chairman of the RA notifying the residents of the estate that those who had not paid the security and maintenance charges would have to personally open the boom gates without any assistance from the security guards when entering the estate. The Appellant, dissatisfied with the circular, lodged a police report and an online complaint with the local authority ( MBPJ ). The Appellant thereafter sued the Respondent on the grounds of inter alia, nuisance and that the boom gates and guardhouse were illegal structures that amounted to obstructions in law and ought to be demolished. The Respondent counterclaimed for arrears of security and maintenance charges and for an injunction restraining the Appellant from harassing the Respondent and the security guards at the guardhouse. The High Court dismissed the Appellant s action and allowed the Respondent s counterclaim in part by issuing the injunction restraining the Appellant from harassing the Respondent and the security guards. The Court of Appeal affirmed the High Court s decision and the Appellant appealed to the Federal Court. In the appeal, counsel contended inter alia, that the erecting of a guard house and a boom gate across a public road in a residential area amounted to an obstruction within the meaning of s 46(1)(a) of the Street, Drainage and Building Act 1974( SDBA ) and that both the High Court and the Court of Appeal failed to consider the application and implication of s 46(1)(a) 31

2 CIDB Construction Law Report 2015 of the SDBA. The Federal Court was of the view that the principal issue to be decided was whether the guard-house and the boom gates were constructed with the approval of the local authority, ie, MBPJ. Held, dismissing the appeal: (1) Section 46(1)(a) of the SDBA had no application where the local authority had given approval for the so-called obstruction complained of. Section 46(1)(a) of the SDBA must be read with s 46(3) of the SDBA that empowereds the local authority to remove an obstruction. (2) The developer as predecessor to the Respondent had obtained approval from the MBPJ under the Town and Country Planning Act 1976 ( TCPA ) for the construction of the guard-house, by the approval of the layout plan. Further, there could be no dispute over the authority of the MBPJ to issue the Guidelines for Guarded Communities and give approval in accordance therewith. Under the SDBA, the local authority had full supervisory authority over all buildings, both at the pre-construction and post-construction stage. By s 70(3) of the SDBA the local authority was the approving authority for the erection of any building. MBPJ was thus the rightful authority for the approval of the guard house and the boom gates as buildings under the SDBA. (3) The Local Government Act 1976 ( LGA ) empowered the local authority to do all things necessary for or conducive to the public safety, health and convenience. It could not be disputed that guarded communities are schemes implemented to improve public safety and security in defined residential areas. (4) The guard house and boom gates were duly authorized structures under the TCPA, the SDBA and the LGA and cannot therefore in law be an obstruction under s 46(1)(a) of the SDBA. The MBPJ as the relevant local authority was fully empowered to approve the construction of buildings which could be in the nature of a guard house with boom gates. (5) Regulated access to a defined area was not an obstruction in law especially if it was for security purposes. It would be so only if one was denied access to a public place. It was not a barricade that was placed across a public road that denied access altogether to all who wished to enter. In the instant case, the Appellant did not complain that he or his family were prohibited from access at all or that the boom gates were a barricade against him or his family. The Appellant s complaint was really a complaint of inconvenience and not of obstruction. (6) At common law, both actionable obstruction or actionable private nuisance were not available for inconvenience. It was a matter of degree at all times and the conduct had to be unreasonable conduct in the circumstances of 32

3 the case for it to be actionable. The underlying rule was a recognition that individuals live within a community and it was always the balancing of the individuals inconvenience against the communities interest that was of paramount concern. In the instant case, both the High Court and the Court of Appeal had correctly concluded that the Appellant s inconvenience was not an actionable nuisance by the presence of the guard house and the boom gates. COMMENTARY by Lam Wai Loon Partner at Harold & Lam Partnership Gated and Guarded Housing Estate Introduction In this case, 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: (1) Whether the erection of a guard house and a boom gate across a public road in a residential area amounted to an obstruction within the meaning of s 46(1)(a) of the Street, Drainage and Building Act 1974 ("SDBA"); and (2) Whether a local government was empowered to authorize or otherwise approve an obstruction within the meaning of s 46(1) (a) of the SDBA. The Federal Court answered Question 1 in the negative and Question 2 in the affirmative, and dismissed the appeal. Lessons learnt from the case The Appellant sought to rely on s 46(1) of the SDBA in contending that the boom gates erected at the housing area were illegal as they constituted an obstruction over a public road. The Federal Court however rightly pointed out that s 46(1) of the SDBA would not apply 33

4 CIDB Construction Law Report 2015 where the local authority had given approval for the construction that was 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 provided that the local authority was the relevant planning authority for any local area (see s 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 was also empowered under the Local Government Act 1976 to do all things necessary for the purposes of public safety, health and convenience (see s 101(v)) and the erection of boom gates and a guard house at a housing estate clearly fell within that 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 enunciated that such construction did 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 was 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 was 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 did not constitute an actionable nuisance. Suggested best practices to be adopted It is important to note that the Federal Court s decision which decided that there was no actionable nuisance is predicated upon the fact that the boom gates and the guard house were built to regulate access by individuals to a housing estate for security purposes. The Courts would have decided differently if the complainant was prevented or hindered from entering his residence on the ground that he had failed to pay the monthly security service fees. Further, although the Courts found that the local authority had the power to authorise the erection of a 34

5 guardhouse and boom gates, it would be prudent for the developer of a ousing estate, particularly one which was not an approved gated and guarded housing development under the Strata Titles (Amendment) Act 2007, to ensure that the construction of such structures in the housing estate were already set out in the layout plan for the development and approved by the relevant local authority, if such security features were intended to be incorporated into the housing scheme; and to incorporate into the Sales and Purchase Agreement a term that the owners of the properties consent to the scheme and the relevant rules governing the security scheme are binding on the residents of the housing estate. 35