Guarded community, public roads: no discrimination against residents who do not pay service fee, court says

KUALA LUMPUR – The Shah Alam High Court ruling that a residents’ association in Petaling Jaya cannot discriminate or penalise those who chose not to pay monthly service fees is an affirmation of the Petaling Jaya City Council’s (MBPJ) non-discrimination principle against homeowners in the use of public roads. 

The high court ruled that residents of Parkville – a gated and guarded community – who choose not to pay the monthly service fees should not be compelled to operate the automated boom gates themselves.

MBPJ councillor Derek Fernandez said the decision by the high court is consistent with the council’s guidelines and rules for approval for a residents’ association to operate a guarded security scheme on a public road. 

“With this ruling, you cannot discriminate between a non-paying and paying resident in the use of a public road under what is supposed to be a voluntary guarded scheme allowed to operate under the legal power of the local authority under the Local Government Act of 1976,” he told The Vibes.

Fernandez stressed that it is apparent that all guarded security schemes are established on a voluntary basis with a minimum of 75% of owners in the scheme agreeing to support. 

Elaborating on the matter, the planning lawyer said 100% of support is not necessary and as such, 25% are entitled to the right not to support the scheme for any reason. 

“And if they choose not to support such schemes, they can’t be discriminated in having to lift physical barriers on public roads by themselves to get to their own homes.

“If it were so, then the local authority would, in fairness, require 100% support.”

In addition, he revealed that MBPJ has received several complaints of some residents who had to lift boom gate poles in the rain or use visitor lanes in an attempt to return home that they have been occupying before any such guarded schemes were in place.

However, if the certain individual is a non-member, he said the security does not need to respond to an emergency call from that said person’s home – something that is quite different from discrimination in the use of a public road.

“Quite often many forget that a public road is not private property, and that the local authority can impose conditions in the approval of any guarded scheme.

“Luckily, the vast majority of such guarded schemes in PJ are following the rules in relation to this matter,” he said. 

On Friday, Shah Alam High Court judge Shahnaz Sulaiman, passed the ruling, saying MBPJ has the authority to prohibit any association under its authority from imposing unreasonable conditions on homeowners. 

In dismissing a judicial review application, judge Shahnaz was quoted as saying by Free Malaysia Today that the residents’ association’s approval to operate as a guarded community, in the view of the court, is under the purview of MBPJ.

She said that it is not illegal, irrational, or unreasonable for MBPJ to refuse to let the association enforce such a rule. 

The judge had also said the guarded community guidelines contained provisions for the council to prohibit the requirement that non-paying residents and non-members operate the boom gates on their own.

Parkville residents’ association president Chow Hau Mun filed the suit against MBPJ after the council turned down its request for non-members to operate boom gates on their own. 

Chow’s lawyer, A. Surendra Ananth, based the need to impose the condition on a 2015 federal court ruling.

However, MBPJ asserted that Chow’s argument was unsupported by the ruling of the federal court. 

Justice Shahnaz further said that the apex court ruling was whether an inconvenience could amount to actionable nuisance – and that this matter was not the issue before the court in this case.

“This issue was pertaining to the condition imposed by the respondent (MBPJ) to the residents’ association,” she said in her judgment. 

MBPJ, in December 2020, approved the association’s application to operate a guarded community until this December.

At the beginning of last year, the association wrote to MBPJ informing them that it would impose its rule on non-paying residents, which garnered complaints from several homeowners.

The council then wrote to the association to cancel the condition, but the attempt remained futile. 

On March 30 last year, Chow challenged the council’s decision. 

According to Surendra, a notice of appeal has been filed with the Court of Appeal. – The Vibes, July 3, 2022