• The Parkville RA filed the judicial review through its chairman, seeking a declaration that the RA is entitled to impose a rule that non-paying owners and residents or non-members of the association in the residential area would operate the boom gates themselves without the assistance of the security guards.

PUTRAJAYA (Oct 12): The Federal Court has granted permission to the Petaling Jaya City Council (MBPJ) to have the merits of its appeal be heard over the success of a residents' association (RA) in the Court of Appeal, which decided that non-paying members in a residential area can remove the boom gates to the entrance there themselves without the security guards' assistance.

The RA in question is the Parkville residents’ association.

A three-member bench led by Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah on Wednesday granted leave to the city council based on three questions of law posed by the bench that also consisted of Federal Court judges Tan Sri Nallini Pathmanathan and Datuk Abdul Karim Abdul Jalil.

The questions of law to be decided are:

a) Whether local authorities can enact guidelines, regulations and/or impose conditions when regulating guarded community schemes in residential areas to ensure that there are no impediments to rights of residents (including the aged, retirees, and the infirm) in these areas when they access their homes?

b) Whether it is permissible for an RA to restrict the rights of non-paying members of the RA and non-members of the RA to use public roads in the residential area by requiring these persons to operate the boom gates leading into the residential area on their own?

c) Whether a local authority like MBPJ can balance the rights of residents who live within a residential area who want a guarded community scheme and those who do not want such a scheme by prohibiting those in favour of the scheme from restricting the rights of those not in favour of the scheme to use public roads leading into the scheme?

The outcome of Wednesday's matter was confirmed by lawyer Abraham Au, who appeared with counsel Datuk Dr Gurdial Singh Nijar, while Datuk Malik Imtiaz Sarwar and Surendra Ananth represented the RA.

The Shah Alam High Court last year found MBPJ’s refusal to allow the RA to impose the condition was legal, rational and reasonable.

The Court of Appeal, however, on April 17 reversed the High Court decision by allowing the RA’s appeal, as it ruled that the condition was reasonable, and decided that the non-paying members can operate the boom gates themselves.

The appellate court decided that the condition was reasonable based on the Federal Court decision in Au Kean Hoe v D'Villa Equestrian, where the apex court held that the construction of a guardhouse and boom gates did not amount to an "obstruction" under Section 46(1) (a) of the Street, Drainage and Building Act 1974.

The Parkville RA filed the judicial review through its chairman, seeking a declaration that the RA is entitled to impose a rule that non-paying owners and residents or non-members of the association in the residential area would operate the boom gates themselves without the assistance of the security guards.

This followed MBPJ's rejection of the RA's application for permission to impose the condition on March 30, 2021.

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