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Case Update: Balancing community safety and individual rights in a Guarded Community

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14 July 2023

ADMINISTRATIVE LAW
Boom Gate – Guard House - Conditions – Public Safety – Community Interest – Obstruction – Nuisance – Appeal

Lim Keng Jit v Majlis Bandaraya Petaling Jaya
Civil Appeal No.B-01(A)-426-06/2002 | Court of Appeal
- see the grounds of judgment here

Facts Lim Keng Jit (the ‘Appellant’) is an authorized officer of the Residents Association of Parkville Sunway Damansara (‘RA’). The Respondent is the Majlis Bandaraya Petaling Jaya (‘MBPJ”), the relevant local council under the Local Government Act 1976 (‘LGA’). The RA was first registered as a society in 2007. In 2017, it had applied to MBPJ for the RA to be a Guarded Community. The application was approved for 2 years. The condition in the application was that no driver of any vehicle could be ordered to alight from his car to open the boom gate by himself to enable his vehicle to use the access road to the Residential Area. In 2018, the RA was de-registered, however, it was re-registered in 2019. During its 1st Annual General Meeting, it was resolved that a renewal application to continue as a Guarded Community would be submitted and to impose a condition that non-members of the RA would have to operate the boom gate themselves without the assistance of security guards (‘Condition’). Subsequently, the RA submitted its application to renew MBPJ’s approval to operate as a Guarded Community. The renewal was granted with a stipulation that the RA cannot direct that non-members have to register with the guard house in order to gain entry into the RA. Following that, the RA wrote to MBPJ stating it will be imposing the Condition based on the decision in Au Kean Hoe v Persatuan Penduduk D’Villa Equestrian[1]. Complaints from the residents in the RA ensued, prompting a visit by MBPJ. MBPJ rejected the RA’s request to impose the Condition which led to the Appellant filing a Judicial Review to quash the decision of the MBPJ. The HC found that Au Kean Hoe’s case did not apply and that the RA had not raised any issue regarding the condition in the 2018 Approval and had not challenged the 2017 Guideline. Further to that the High Court held that the Condition was an attempt to pressure residents into joining the RA therefore the Decision of MBPJ was thus found to be not illegal, irrational or unreasonable. Hence, this appeal.

Issue Whether the Learned High Court judge had erred in his decision in upholding the rejection of the RA's application to impose the condition?

Held In allowing the appeal, the Court of Appeal held that given the factual matrix of the case, the refusal to exempt the RA from the condition where no driver of any vehicle could be ordered to alight from his car to open the boom gate by himself to enable his vehicle to use the access road to the Residential Area, is not reasonable. The Court of Appeal further held that the larger interest of the community has to prevail over the rights of individuals, where the issues of public safety and security has to prevail over matters of inconvenience. The Condition was held to be necessary to ensure the proper functioning of a security system for the Residential Area. Further it was held to be unreasonable for non-paying individuals to enjoy the benefits of a guarded community without making any contribution and not having to fork out a single cent. It cannot be construed to be an attempt to force residents into joining the RA. In respect to whether it was detrimental to the case that the RA had not challenged the 2018 Approval and the 2017 Guideline, the Court of Appeal held that there was also no necessity to challenge the 2017 Guidelines. What is being correctly challenged is the Decision to reject the RA’s application to impose the Condition, which was binding on the RA. Hence, the appeal was allowed and the decision of the High Court was set aside.

Zul Rafique & Partners
{14 July 2023}
[1] [2015] 3 CLJ 277.

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