In April, the Court of Appeal ruled that the residents’ association of Parkville in Sunway Damansara here could impose the condition on members who do not contribute towards security and maintenance.
Yesterday, a three-member bench of the apex court chaired by Chief Judge of Malaya, Zabidin Diah said MBPJ had crossed the threshold under Section 96 of the Courts of Judicature Act 1964 to have the merits of its appeal heard.
“This matter now requires further argument based on the three legal questions approved,” Zabidin said when announcing the ruling.
Also on the bench were Justices Nallini Pathmanathan and Abdul Karim Abdul Jalil.
Under Section 96, leave will be granted only if there are novel constitutional or legal questions of public importance, raised for the first time.
In its application, MBPJ had asked the Federal Court to consider whether a local government can draw up rules and guidelines and impose conditions on gated communities to prevent restrictions being placed on residents entering and exiting their housing estates.
MBPJ also asked that the apex court consider whether a registered association can prevent or impede the access of non-paying residents and non-association members to public roads through boom gates.
In its third question, MBPJ said the Federal Court must 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.
Lawyer Gurdial Singh appeared for MBPJ, while counsel Malik Imtiaz Sarwar appeared for Lim Keng Jit, the new president of the Parkville residents’ association.
In its decision, a three-member Court of Appeal bench chaired by Justice Has Zanah Mehat said there had to be a balance between the interests of the community as a whole and those of non-paying residents.
Has Zanah, who has since retired, said the decision was aligned with a 2015 Federal Court ruling in the case of Au Kean Hoe v Persatuan Penduduk D’Villa Equestrian.
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.
That ruling overturned a High Court decision handed down 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.
The residents’ association’s former president, Chow Hau Mun, had filed for a judicial review two years ago after MBPJ rejected its application for permission to make non-paying members and non-members operate the boom gates themselves.
Dismissing the application, Shahnaz had 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.