• The unanimous decision was made by a three-member apex court bench led by Datuk Zabariah Mohd Yusoff, who also ordered MBPJ to pay RM100,000 costs to the RA identified as Lim Keng Jit who represented the Parkville RA in Sunway Damansara.

PUTRAJAYA (April 18): The Federal Court on Thursday dismissed an appeal by the Petaling Jaya City Council (MBPJ) over the Court of Appeal’s decision last year that decided that non-paying members in a residential area (RA) could raise the boom gates at the entrance to the housing area themselves without the security guards' assistance.

The unanimous decision was made by a three-member apex court bench led by Datuk Zabariah Mohd Yusoff, who also ordered MBPJ to pay RM100,000 costs to the RA identified as Lim Keng Jit who represented the Parkville RA in Sunway Damansara.

Zabariah sat with judges Datuk Seri Hasnah Mohammed Hashim and Datuk Vazeer Alam Mydin Meera.

In deciding not to answer the questions posed by MBPJ, the apex court ruled that the Court of Appeal’s decision last year, based on the Au Kean Hoe v D’Villa Equestrian decision, was correct, and said that the lower court’s decision for the RA to ask its non-paying members to raise the boom gates themselves to get in and out of the housing estate was lawful.

The outcome was confirmed to The Edge by lawyer Surendra Ananth, who appeared with counsel Datuk Malik Imtiaz Sarwar for Lim in online proceedings on Thursday.

Datuk Gurdial Singh Nijar and Yatiswara Ramachandran appeared for MBPJ.

Last October, a three-member Federal Court bench granted leave to MBPJ for the merits of the appeal be heard based on three questions posed by the bench namely:-

*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 the rights of residents (including the aged, retirees, and the infirm) in these areas when they access their homes?

*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?

*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 residential area?

The Shah Alam High Court, in 2022, 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, 2023, reversed the High Court’s 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’s 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, Lim, seeking a declaration that the RA is entitled to impose a rule that non-paying owners and residents or non-members of the RA 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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