Inconvenience alone does not constitute actionable nuisance or obstruction under s 46(1)(a) of the Street, Drainage and Building Act 1974.

Introduction

[1] This is an appeal by the appellant against the decision of the Court of Appeal in dismissing the appellant's appeal against the decision of the High Court at Shah Alam. The High Court had dismissed the appellant's claim against the respondent for nuisance and obstruction as well as for injunction and allowing the respondent's counterclaim for damages to the boom gates and for the order restraining the appellant from harassing the committee members of the respondent and the security guards.

[2] Dissatisfied with the decision of the Court of Appeal, the appellant sought and obtained leave from this Court to appeal against the said decision on the following two questions of law:

(1) Whether the erecting of a guard house and a boom gate across a public road in a residential area amounts to an obstruction within the meaning of s 46(1)(a) of the Street, Drainage and Building Act 1974 ("SDBA")?; and

(2) Whether a local government is empowered to authorise or otherwise approve an obstruction within the meaning of s 46(1)(a) of the SDBA?

Background Facts

[3] The relevant backgrounds of the case may be summarised as follows:

(1) The appellant and his wife are the purchasers and co-owner of a House No 7, Jalan Kenyalang 11/5E, D'Villa Equestrian, Kota Damansara, 47810 Petaling Jaya ("the housing estate"). They purchased the house from the first buyer on 23 November 2006 and moved in on January 2007.

(2) The housing estate was developed by Sunway Damansara Sdn Bhd ("the developer"). There is only one entrance and exit road to the housing estate, that is Jalan 11/15. The developer had constructed two boom gates and a guard house on Jalan 11/15 of the housing estate. The developer was responsible for the security and maintenance including the two boom gates and the guard house of the housing estate until December 2007.

(3) When the appellant and his wife purchased the house in the housing estate, the two boom gates and the guard house were already in place and functioning.

(4) The respondent is the Residents' Association ("RA") of the housing estate. It is registered under the Societies Act 1966. The appellant was a member of the RA and was the Treasurer from May 2009 to March 2010. He took no objection to the boom gates during this period.

(5) Beginning from January 2008, the residents of the housing estate were required to pay RM250.00 per month to the respondent as security and maintenance charges. This amount was later reduced to RM200.00 per month sometime in August 2009. At a meeting held on 21 July 2007, the residents of the housing estate had unanimously agreed that those who do not pay for the security and maintenance charges will not enjoy the facilities provided by the guards at the gate or the security facilities.

(6) The appellant ceased to be a member of the RA sometime in August 2010 and had since then stopped paying the maintenance and security charges.

(7) On 25 October 2011 the respondent issued a circular signed by the Chairman, the Treasurer and the Secretary of the RA notifying the residents that those who have not paid the security and maintenance charges will have to do a self-service entrance to the housing estate; that is to say that they will have to open the boom gates themselves without the assistance of the security guard on duty.

(8) Dissatisfied with the above circular the appellant lodged a police report dated 30 October 2011. The appellant also lodged an online complaint dated 31 October 2011 through the local authority, Majlis Bandaraya Petaling Jaya ("MBPJ") website.

(9) The appellant discovered that the respondent's application to MBPJ for setting up of the alleged obstructions (the boom