3. Brief facts:
● The respondent have made structural alteration to the building without approval from appellants,
the local authority.
● DF asked for ex-parte interim/interlocutory Injunctions –which is an order granted without the
presence of the Defendant restraining the respondents from operating the said eating house
● Public nuisance
● PL applied to strike out the actions and dissolved the ex-parte injunction
● Appeal case from High Court
4. Legal issues:
There are two issues :
● Whether the cause of action is wrongfully instituted?
● Whether interlocutory relief is an appropriate remedy at this stage of proceedings?
5. Ratio decidendi:
● Whether the cause of action is wrongfully instituted?
● Whether the appellants can institute proceedings seeking an injunction to restrain a public
nuisance without the relation of the Attorney-General.
● S8(1) of the Government Proceedings Ordinance, 1956 - only the Attorney-General, or two or
more persons having obtained the consent in writing of the Attorney-General, may institute a
suit.
● From several cases and book, we knew that
● A case in the Year Books "If one of those injured were allowed to sue, a thousand might do so;"
● Blackstone in his Commentaries "it would be unreasonable to multiply suits by giving every
man a separate right of action…“
● S80 of the Local Government Act, 1976 protects the class of persons affected by the illegal
conduct of the respondents because local authority may abate a public nuisance without the
intervention of the Attorney-General.they can institute legal proceedings in their own corporate
name by virtue of section 13 of the Local Government Act, 1976
6. Ratio decidendi:
● Whether interlocutory relief is an appropriate remedy at this stage of proceedings?
- S54 of the Specific Relief Act, 1950 (Act 137) reads ''An injunction cannot be granted when equally
efficacious relief can certainly be obtained''.
- It is argued the summary procedure available to the appellants to abate a nuisance is an equally
efficacious relief as that of an injunction to restrain the respondents from flouting the law.
- In order for the appellants to be entitled to interlocutory relief, it is necessary for the court to be satisfied
that there are serious questions to be tried. Based on balance of convenience, injunctive relief should be
granted, there is a reasonable prospect of the trial court granting an injunction, whereas if breaches of the
law are allowed to continue, it will be impossible or useless to grant it at the trial.
7. Decisions:
● On the issue of nuisance, the court referred to Section 8(1) of the Government Proceeding
Ordinance 1956, which states that if a local authority decides not to proceed against any
person committing a public nuisance for whatever reason, but instead chooses to institute a
suit for public nuisance, then Section 8(1) clearly applies.
● In this case, if the alleged defendants' actions amount to a public nuisance, the Attorney-
General may sue in respect of the public nuisance, or his previous written consent must be
acquired by two or more people commencing the suit.
● Plaintiff’s counsel submitted that as Section 80 of the Local Government Act, 1976, required a
local authority to “take steps to remove, put down and abate all nuisances of a public nature
within the local authority area on public or private premises and may proceed at law against
any person committing any such nuisances for the abatement thereof and for damages”.
● As a result, there was no need for the plaintiff to seek the Attorney-permission General's to
proceed with an action against the defendants for public nuisance.
8. PRIVATE NUISANCE
Au Kean Hoe v. Persatuan Penduduk D’villa Equestrian
[2015] 4 MLJ 204
Leisure Farm Corporation v Chow Tat Chow & Anor
[2019] MLJU 1349
9. Brief facts:
Au Kean Ho
● Private Nuisance
● Respondent was the Residents’ association for the
housing estate.
● Respondent decided that those residents who did
not pay the monthly fee for security and
maintenance charges would have to open the
boom gates themselves without the assistance of
the security guard on duty.
● Appellant refused to pay and sued the respondent
in High court for nuisance.
● The High court dismissed the appellant’s claim and
held that it is not unreasonable for the respondent
to impose such condition .
● The Court of Appeal affirmed the High Court’s
decision.
● Led to the Federal Court.
Leisure Farm Corporation
● Private Nuisance
● Plaintiff was the developer of an estate called
Leisure Farm.
● 1st Defendant was a purchaser of a piece of land
from the Plaintiff in Leisure Farm Resort.
● 1st Defendant had failed to pay the Maintenance
Charges for several years.
● However, 1st Defendant had sold his piece of land
in Leisure Farm Resort to the 2nd Defendant.
● The 2nd Defendant on the other hand had not
entered into any contract with the Plaintiff to
commit himself to pay any Maintenance Charges.
● The Plaintiff’s case against the 1st Defendant is for
breach of contract and the claim to enforce a
contract against the 2nd Defendant that the 2nd
Defendant does not want to.
10. Legal issues:
Au Kean Ho
Whether the erecting of a guardhouse and a boom gate
across a public road in a residential area amounts to an
obstruction within the meaning of s 46(1)(a) of the Street,
Drainage and Building Act 1974 (‘SDBA’) ?
Whether a local government is empowered to authorise or
otherwise approve an obstruction within the meaning of s
46(1)(a) of the SDBA ?
Whether the appellant success in the claim of nuisance in
creating an obstruction on a public road by respondent?
Leisure Farm Corporation
Whether the 1st defendant breached the Plaintiff’s SPA in
failing to pay the Plaintiff, Maintenances Charges dating
from 2006 to 2016 amounting to a total sum of
RM67,764.54 ?
Whether the 1st Defendant breached clause 9.1 of the
Plaintiff’s SPA in failing to ensure that the 2nd
Defendant is bound by the covenants and bye-laws set out
in the Plaintiff’s SPA ?
Whether the 2nd Defendant can counterclaim in nuisance?
11. Ratio Decidendi:
Au Kean Ho
- A regulated access to a defined area is not an
obstruction in law especially if it is for security
purposes. It is so only if one is denied access to a
public place.
- The appellant’s complaint in reality is a complaint of
inconvenience and not of obstruction (the appellant
does not complain that he or his family are prohibited
from access at all, his complaint is that he is
inconvenienced because he has to engage in self-
service to lift the gate)
- At common law, both actionable obstruction or
actionable private nuisance is not available for
inconvenience.
- It is a matter of degree at all times and the conduct
has to be unreasonable conduct in the circumstances
of the case for it to be actionable
Leisure Farm Corporation
- 2nd Defendant in his counterclaim contends that his access to his
property had been obstructed by the Plaintiff due to his refusal pay the
Maintenance Charge.
- There are some guardhouses and boom gates erected at the entrance of
Leisure Farm Resort which the gate can only be operated by the use of an
access card
- The P control and regulate the use of roads that do not belong to it
(stopping persons from gaining access to their properties unless they
contract with and make payments to the P, without the authorisation of
the local authority.
- The court refer to Au Kean Hoe and explains that it is a private
nuisance when the act or omission only affects the person ownership or
occupation of land or of some easement or other right used or enjoyed in
connection with land
- The court satisfied that placing of a gate was clearly an obstruction
because the 2nd D was not allowed to pass without complying with the P
requirement to register and to leave a document of identification with
the security guards.
12. Decisions of the case Au Kean Ho
● The Court of Appeal affirmed the decision of the High Court and accordingly dismissed the Appellant’s
appeal.
● The Appellant sought to use section 46(1) of the SDBA to claim that the boom gates installed at the
housing area are unlawful because they constitute an obstruction over a public road. The Federal Court,
on the other hand, correctly pointed out that section 46(1) of the SDBA does not apply if the local
authority has approved the construction that is being contested. The case of UDA Holdings Bhd v
Koperasi Pasaraya Malaysia Sdn Bhd & Other Appeals [2009] 1 CLJ 329 was cited by the court. In this
case, the MBPJ granted authority for the building of the boom gates and guard house sometime in 2002.
● The Respondent received approval from MBPJ based on the layout plan provided by the Developer of
the housing estate for the development. This was done in compliance with the Town and Country
Planning Act of 1976. The TCPA specifically states in Section 5 that the local authority is the applicable
planning authority for any local area. In the circumstances, MBPJ certainly had the power to provide
clearance for the boom gates and guard house at the housing development.
● Furthermore, under Section 101(v) of the Local Government Act 1976, the MPBJ is also empowered to
do whatever things required for the objectives of public safety, health, and convenience, and the
installation of boom gates and a guard station at a housing estate clearly fits under this category.
13. Decisions:
● Since that the MPBJ, as the local authority, had approved the installation of boom gates and a guard
station at the housing estate for security purposes, the Federal Court correctly stated that such
construction does not constitute an obstruction in law. A controlled entrance to a defined area for
security reasons cannot be viewed as an obstruction because it does not prevent access to individuals
who seek to enter the housing estate entirely.
● According to the Respondent's Counsel, the Appellant's action against the Respondent was clearly a
matter of inconvenience rather than obstruction. In this regard, the Federal Court stated that balancing
an individual's inconvenience against the interests of the community is of the utmost importance. The
court referred to the decision of George Philip & Ors v Subbammal & Ors AIR 1957 Tra-Co. 281 and
decided that the existence of the boom gates and guard house at the housing development does not
constitute nuisance.
14. Decisions of the case Leisure Farm Corporation
● The court relied on the case of Dr Christian Jurgen Kaul & Anor v Meru Valley Resort Bhd [2013] 6 CLJ 597.
● The judge agrees with the defendant that this is not a case of the defendant prohibiting the plaintiffs from
accessing water that flowed naturally through the Land. Rather, it is a system in which the defendant
acquired the water from LAP and built the required pipeline, pumping system, and metre reading to ensure
that the water is safe and available to all households who enter into a contractual agreement controlling the
distribution of the water.
● In the circumstances, the plaintiffs' accusation falls far short of the Tort of Nuisance. It is a matter of
Contract between the plaintiffs' predecessor-in-title and the defendant, as well as between the plaintiffs and
the defendant.
● The learned judge further determined that the defendant's broad discretion under the sale and purchase
agreement between the defendant and the original purchaser had granted the defendant the liberty to
produce the deed of mutual covenant.
15. Decisions:
● The court also referred to the case of Au Kean Hoe v Persatuan Penduduk D'villa Equestrian [2015] 4
MLJ 204 as the case’s factual setting is identical. In Au Kean Hoe, it is significant that no one was actually
prevented from using the road into the housing estate or required to submit to the demands of any
private security personnel. The plaintiff might get access by simply lowering the barrier himself. All it
meant was that the plaintiff couldn't convince the guards to help him lift the barrier, allowing him to go
along the road. This is reasonable because he did not contribute to the cost of the guards' services. The
issue remains, however, that the plaintiff could get admission to his residence on his own will and it was
held to be no nuisance.
● In the present case, the boom gates were installed by the Plaintiff, a private developer. These were
limits on the usage of roadways that did not belong to the Plaintiff. The 2nd Defendant cannot acquire
access to his property unless he submits to the Plaintiff's, and he cannot gain entrance where his
property is located unless the Plaintiff's security personnel enables him to do so by using an access card.
These limitations were not imposed or enforced by the residents' association.
16. Differences between the cases:
-In Leisure, the Plaintiff’s claim against the 2nd Defendant is in turn met with a counterclaim in nuisance.
-In the case of Au, the real complaint was not of obstruction but that he was inconvenienced because he had
to engage in self-service to lift the gate. At common law, actionable obstruction or actionable private nuisance
was not available for inconvenience.
-In the case of Leisure, at the entrance to the precinct where his property is located, there is a gate which the
2nd Defendant cannot get past without the approval or agreement of the security guards. He was in effect
precluded from getting to his property without the consent of the guards.
-He cannot, as was the case in Au Kean Hoe, allow himself through because the boom gate and the gate would
not open without an access card and he was not allowed one.
![PUBLIC NUISANCE
Majlis Perbandaran Pulau Pinang v. Beow Siew Than
& Ors [1979] 2 MLJ 127](data:image/gif;base64,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7)