Approval from a local authority legitimizes a guarded scheme, exempting it from claims of nuisance when it does not meaningfully interfere with public convenience.

Introduction

[1] This appeal emanated from the decision of the learned High Court Judge (LHCJ) at Kuala Lumpur High Court dismissing the appellants'/the plaintiffs' claim against the respondent/the defendant premised on the tort of nuisance, both public and private, and for breach of personal data law. The relief sought by the appellants/the plaintiffs are inter alia for declarations, injunctions, specific orders and damages.

[2] For ease of reference, parties will be identified as in the trial Court, the plaintiffs and the defendant.

Brief Background Facts

[3] The 1st plaintiff is a registered proprietor of a house at No 73 Jalan Limau Manis, Bangsar Park, Kuala Lumpur (the said Property). The 2nd plaintiff is the tenant of the said Property. The defendant is a Resident Association registered under Society Act 1966 who managed the Guarded Neighbourhood (GN) scheme and represents the residents of Bangsar Park. The defendant then brought in Dewan Bandaraya and Datuk Bandar Kuala Lumpur as the third party.

[4] On or about 2 January 2017, the defendant had set up the GN scheme which comprises a security posts and automatic gates on Lorong Limau Manis 1 and manual barriers on Jalan Limau Lipis, Jalan Limau Kasturi, Lorong Limau Kasturi and Lorong Limau Manis 2 located in Bangsar Park which was implemented to improve public safety and security for all residents. The defendant's GN scheme was duly approved by the third party upon the defendant's application. Following that, the third party granted the defendant's GN scheme an extension subject to the defendant meeting certain requirements. The defendant's GN scheme was renewed from 1 October 2016 to 10 March 2020.

[5] In managing and maintaining the GN scheme, the defendant has collected monthly fees from the residents to foot the bill for security and maintenance charges and to provide windshield stickers for residents' vehicles for easy identification and access to the GN area. The defendant's GN scheme consists of a guard house and boom gate with a closed-circuit television camera (CCTV) at the main entrances and an unmanned barrier placed at certain road sides or back lanes for the effectiveness of security in the GN area.

[6] Disagreeing with the implementation of the GN scheme, the plaintiffs filed suit against the defendant claiming that the whole or any part of the defendant's GN scheme is illegal and amounts to an unwarranted intrusion into their private lives and the lives of members of the public who enter or reside within the GN area.

The LHCJ's Decision

[7] The principal issue to be decided is whether the defendant's GN scheme which comprises of the guard house and the boom gates were constructed with the approval of the relevant local authority, namely the third party. It was not disputed that the third party had given their approval to the defendant to implement and operate the GN scheme. The approval was renewed on a three-month basis in the beginning and on a yearly basis thereafter from 1 October 2016 to 10 March 2020 based on the guidelines issued by the Ministry of Housing and Local Government. Thus, the third party's approval makes it legal and lawful for the defendant to execute and operate the GN scheme within the area specified.

[8] As to the private or public nuisance, the plaintiffs failed to prove that the defendant had committed any act of nuisance by maintaining the boom gates and the guard house on the only road at the entrance to the GN area. Living in a robust society where safety and security are the prime concerns, one has to balance individuals' inconveniences against the communities' interests so long as such interference does not go beyond di