To succeed, MBPJ must satisfy the court that there are novel constitutional or legal questions of public importance, raised for the first time, as required under Section 96 of the Courts of Judicature Act 1964.
Lawyer A Surendra Ananth, who represents Parkville residents’ association president Chow Hau Mun, said MBPJ filed the leave application through its solicitors, Yatiswara, Ng & Chan, last week.
He said MBPJ had framed four legal questions which the council says warrant a hearing of the appeal by the apex court.
The first question is whether a local government can draw up guidelines and rules and impose conditions on gated communities to prevent restrictions being placed on residents entering and exiting their housing estates.
The second question involves whether the 2015 Federal Court ruling in the case of Au Kean Hoe v Persatuan Penduduk D’Villa Equestrian allows a registered association to draw up its own guidelines.
Another question asks the apex court to consider whether a registered association can prevent or impede the access of non-paying residents or non-association members to public roads via boom gates.
Fourthly, MBPJ wants the Federal Court to consider whether a local government can strike a balance between the rights of paying and non-paying residents in respect of the use of public roads leading to a housing scheme.
On April 17, a three-member Court of Appeal bench chaired by Justice Has Zanah Mehat said a condition set by the Parkville residents’ association requiring non-paying members to operate boom gates themselves was reasonable.
“There has to be a balance between the interests of the community as a whole and the individuals (non-paying residents),” the judge said when allowing Chow’s appeal.
Has Zanah said the decision was in line with the Federal Court’s ruling in the earlier Au Kean Hoe’s case.
In that case, the apex court ruled that the construction of a guardhouse and boom gates did not amount to an “obstruction” under Section 46(1)(a) of the Street, Drainage and Building Act 1974.
Section 46(1)(a) makes it an offence for any person to erect an obstruction in any public place.
Has Zanah, who sat with Justices Che Ruzima Ghazali and See Mee Chun, said it would be unreasonable for non-paying residents to enjoy the benefits of a security system without having to contribute towards it.
The Court of Appeal ruling overturned a High Court decision last year which held that the residents’ association could not impose such conditions on those who refuse to pay the monthly service fees.
Justice Shahnaz Sulaiman said MBPJ’s gated community guidelines do not allow associations to discriminate against non-paying residents and non-members.
Chow had filed for the judicial review after MBPJ in 2021 rejected the association’s application for permission to make non-paying members and non-members operate the boom gates themselves.
Dismissing the application, the judge ruled that MBPJ could prohibit associations under its authority from imposing unreasonable conditions on homeowners.
She said MBPJ’s decision not to allow the association to impose the rule was not illegal, irrational or unreasonable.