JUDGMENT

Elaine Yap Chin Gaik JC:

Introduction

[1] The Plaintiff is the developer of Taman Myra Meranti ("TMM") while the Defendant is the Residents Association for Phase 1 and Phase 2 of TMM comprising 84 houses. The Plaintiff sued the Defendant for denying its contractors entry to the access roads in Phases 1 and 2 to carry out horizontal directional drilling ("HDD") works to lay pipes as a prelude to cabling works by Tenaga Nasional Berhad ("TNB").

Background Facts

[2] Construction in Phases 1 and 2 had been completed earlier and Certificate of Completion and Compliance was achieved on 24 January 2020. However, the access roads within Phases 1 and 2 had not been surrendered to the local council pending completion of Phase 3 of TMM.

[3] The Defendant represented residents who had already received vacant possession of their properties in Phases 1 and 2 as at 8 March 2022 when the Defendant was first notified that HDD works were necessary to connect electricity supply from a TNB substation to newly completed shop houses in Phase 3 of TMM. The HDD and cable route had been planned along one of the access roads in Phases 1 and 2 ("Jalan MM2").

[4] The Plaintiff and Defendant were in email communication on the matter from 11 March 2022 through to 26 May 2022 when the Plaintiff notified the Defendant that the HDD works were expected to start on 30 May 2022. TNB had issued a "Kebenaran Mula Kerja" ("KMK") to the Plaintiff.

[5] On 30 May 2022, the Plaintiff's HDD contractors were stopped at the guardhouse. On 31 May 2022, the Defendant placed on record that they rejected the Plaintiff's entry to carry out the HDD works:

"We have rejected your entrance to carry out other project activity via Taman Myra Meranti. Our security will not allow OIB Properties to carry out other project activity via our compound without settling our Taman Myra Meranti issues. We have lodged a complaint to the relevant authority."

[6] Based on the correspondences sighted, the Defendant cited numerous reasons for its actions. The back and forth between the Plaintiff and the Defendant led to the filing of this action with an injunction application against the Defendant. At this point, the Defendant relented and undertook on 27 June 2022 to allow unconditional entry in exchange for the withdrawal of the injunction application ("Undertaking").

[7] As all access roads in Phases 1 and 2 were still legally and beneficially owned by the Plaintiff, the Plaintiff based its claim in private nuisance, ie that the Defendant had unreasonably refused the Plaintiff and/or its contractors, entry to Jalan MM2 to carry out the HDD works and thereby interfered with the Plaintiff's use of its land, causing loss.

[8] The Defendant filed its defence on 29 July 2022 and with leave, also pleaded a counterclaim in nuisance on 5 April 2023. The Defendant set out the alleged nuisance and damage caused by the HDD works, namely obstruction of part of access roads, potholes and uneven roads, underground water leakage, damage to pavements, fences, landscape and greenery, damage to the TNB substation, power interruption, scratches to vehicles, health issues due to air and noise pollution as well as security risk to children at the playground, all of which were said to interfere with the residents' enjoyment of their properties.

Analysis And Findings

[9] As a cause of action, common law nuisance requires an act or omission which interferes with a person's use or enjoyment of land, or some right over or in connection with land. Whether an act or omission is a nuisance is a question of fact. The primary consideration is the reasonableness of the act or omission in all the circumstances of the particular case. This was clearly explained in Ong Koh Hou v. Perbadanan Pembangunan Bandar & Anor; [2009] 8 MLJ 616:

"[11] It would appear therefore that the primary consideration is the question of reasonableness. In this regard, whether an act constitutes a nuisance cannot be determined by an abstract consideration of