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The lawsuit that made neighbourhood boom gates legal in Malaysia

4 months ago Evin Chan

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This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever. All articles have been scrutinized by a practicing lawyer to ensure accuracy.

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In recent years, crime incidences such as break-ins and snatch thefts have escalated tremendously over the years. The market is now on high demand for properties within a gated and guarded community (GACOS). And if there isn’t such facility to begin with, residents of the housing area would take upon themselves to organise some form of security. This includes fencing up the area, placing boom gates and a guard house at the main entrance. 

It showed effective results, as neighbourhoods who have had boom gates set up saw a significant drop of crime within just two years. But despite boom gates being a common structure in housing areas, they were surprised to find out that the rules on boom gates was a pretty grey area. 

 

The neighbourhood that established how grey the law was 

This was experienced by a few neighbourhoods around Petaling Jaya. In August 2013, Residents’ Association (RA) in the area received orders from the Petaling Jaya City Council (MBPJ) to take down the guard booths and boom gates in their area. As it turns out, out of the 181 RA, only 18 have applied to set up their guard booths. The rest were considered illegal. However, the RA’s continued to keep the boom gates up for their own safety.

MBPJ tried to compromise with non-strata RA’s on this issue, by asking that the boom gates be lifted during the day so that public road remains accessible during the day. This is because under Section 46(1) of the Street, Drainage and Building Act 1974, you can’t put down obstructions, without permission from authorities. And under that same law, the police can physically remove the obstruction itself.

[READ MORE : Strata title vs individual title - how does it affect Malaysian landowners?]

As you can see, the legality of boom gates can get complicated. Even when they had approval to set it up, they had to open it during the day. Some of them even had their boom gates and barriers dismantled.

In October 2013, residents in three PJ residences were surprised by a visit from MBPJ, who came to dismantle the boom gates as well as obstructions in the area. Due to this, residents are now wary about setting up their own security measures, as MBPJ has the last say on what is allowed. In the words of one RA’s president:

“Residents Associations (RA) have always been worried about the legal repercussions of putting up boom gates for security purposes in many places,”  said Taman Seputeh Residents Association president Dr Balaeswaran Poobalasingam to the Rakyat Post.

But ever since Au Kean Hoe’s lawsuit to remove his neighbourhood’s boom gate, his court decision turned this grey area into a black and white matter.

 

How boom gates became legal

In the beginning when Au Kean Hoe moved in to D’ Villa Equestrian, there were already two boom gates and a guard house in operation. The residents unanimously agreed that those who do not pay the monthly fee for security and maintenance charge would have to open the boom gate themselves without the assistance of the security guard on duty. After hearing that, Au was okay with it and paid as told. 

He was then elected as part of the Residents’ Association (RA) and became the treasurer at one point in time. Everything went well until he fell out with the community and he eventually decide to stop paying for the security fee as the boom gates were a nuisance and an obstruction in law. However, he was the odd one out as he was the only one who did not pay for the security and maintenance charge so he had to do self-service entrance to the housing estate. He had to do it everyday including the times when his relatives come to visit his house which made him infuriated. One day, he just decided to drive through the boom gate until it was sufficiently bent so that his car could just pass through without having to leave the car and lift it up. 

He then decided enough is enough, and sued the Residents’ Association for an order to have the guardhouse and boom gates to be demolished. The Residents’ Association counter claimed, saying that he owes damages for the bent boom gate, overdue payment for security charges and to stop him from harassing the RA and the security guard when passing through the guard house. 

 

One man’s loss, every RA’s gain

Gavel Case Dismissed GIF - Gavel CaseDismissed Simpsons GIFs
TL;DR this is the gist of it. Gif from Tenor

High Court dismissed Au’s claim, but to his surprise, the court allowed RA’s claim which includes a claim for damage to the boom gate and a restrained order to stop him from harassing the committee members and the security guard. He did not like the decision so he made an appeal to the Court of Appeal. Again, they stood by the High Court’s decision. Au was not happy with the results. He thought the Federal Court would be in his favour after all that he had gone through so he brought the matter to the highest court in Malaysia. The question of law he was arguing is that the guard house and boom gate is an obstruction under S46(1)(a) of the Street, Drainage and Building Act 1974. The five judges decided that having the boom gates at a housing area is not considered an obstruction in law as he was never once denied access at all. His complaint is that he is inconvenienced because he had to lift the boom gate himself. In short, this means that Au’s complaint is a complain of inconvenience and not of obstruction. 

Au’s suit against D’ Villa Equestrian Residents Association was ultimately dismissed by the Federal Court, and he achieved the exact opposite he went in to the fight in the first place. However, this case set a precedent where boom gates are now authorised structures under the Street, Drainage and Building Act 1974, the Town and Country Planning Act 1976, and the Local Government Act 1976. There would still need to be a negotiation with the MBPJ on regulations, but it’s finally decided: boom gates are legal.

 

Tags:
boom gates
mbpj
residents association
au kean hoe
legal
security guards
guardhouse
dismissed
malaysia
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Evin Chan

not eevee, nor ev(i)an. it’s pronounce as eee-vin! :)


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