The court ruled that local authorities must balance individual rights against community interests, allowing a Residents Association to impose conditions necessary for public safety and security.

Introduction

[1] The boom gate-boon or bane? This is indeed a question which has confronted residents and residents' associations in guarded communities and local authorities and at times, the Courts, when the matter escalates into a dispute. This appeal is one such example.

[2] The Appellant as the Applicant is an authorized officer of the Residents Association of Parkville Sunway Damansara (RA and Residential Area). The Respondent is the Majlis Bandaraya Petaling Jaya (MBPJ), the relevant local council under the Local Government Act 1976 ( LGA ).

[3] The Appellant had sought to challenge by way of judicial review (JR) the decision of the Respondent dated 30 March 2021 (the Decision) essentially rejecting the Appellant's application to impose a rule that non-paying owners and residents or non-residential members of the RA have to operate the boom gates by themselves without the assistance of security guards (the Condition).

[4] The JR challenge was unsuccessful in the High Court. On appeal before us, we had allowed the application for the reasons as below. Background facts.

[5] The RA was 1st registered as a society on 20 August 2007. On 12 December 2017, it had applied to MBPJ for the RA to be a Guarded Community. Then, 90.23% of the residents in the Residential Area had consented to it. The application was approved for 2 years from 1 November 2018 until 31 October 2020 (the 2018 Approval). The condition in para 2(iii) is 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.

[6] The RA was de-registered on 20 November 2018. It was however reregistered on 26 December 2019. On 19 September 2020, the RA had its first Annual General Meeting (AGM) where it was resolved inter alia to submit a renewal application to continue as a Guarded Community 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.

[7] On 9 October 2020, the RA submitted its application to renew MBPJ's approval to operate as a Guarded Community.

[8] On 8 December 2020, the renewal was granted for a period from 1 December 2020 until 1 December 2022 (the 2020 Approval) 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.

[9] On the same day too, another letter was sent attaching the Garis Panduan Komuniti Berpengawal (Guarded Community) Di Kawasan Majlis Bandaraya Petaling Jaya (Penambahbaikan 2017) (the 2017 Guidelines). That letter stated that all RAs were to comply with the Guidelines and any breach would result in enforcement action.

[10] On 21 December 2020, 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 2015 MarsdenLR 1292 ; ; ; [2015] 3 AMR 93.

[11] There were complaints from residents in the RA on the Condition which prompted a visit from MBPJ on 27 January 2021. There followed other letters from the RA maintaining its position and appealing that it be exempted from