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  • Writer's pictureGavin Jayapal

Of parking bays and the dumping of rubbish

















(Though monkeys have the decency to dispose-of biodegradable rubbish)


Of parking bays and the dumping of rubbish

Only two things are infinite: the universe and human stupidity. I am not certain as to the former. -Albert Einstein

Urban living is fraught with dispute. From disorderly neighbours to fights over parking spaces, there is no cap as to the lengths to which humanity will go to exhibit unparalleled depravity. Rubbish dumping and parking disputes are two very common problems. The former is a thoughtless, selfish and utterly opprobrious act that has no place in any civilised society; the latter exists in a grey area.


Both may constitute a trespass or nuisance.


Rubbish dumping recognised as trespass from the 1800s


The English Courts have recognised the indiscriminate dumping of rubbish as being an actionable tort from the 19th-century. In Gregory v Piper (1829) 9 B&C 591, Bayley J held that a servant who had placed rubbish (which subsequently leant against a property-owner’s wall) had committed an act of trespass.

The only question is, whether the trespass was the act of the master. The master desired the servant to lay down the rubbish so as not to let it touch or lean against the wall of the plaintiff. But if in execution of the order it was the necessary or natural consequence of the act ordered to be done that the rubbish should go against the wall, the master is answerable in trespass. The evidence shews that that was the natural consequence. The rule must, therefore, be discharged.

It was immaterial that the servant’s master had instructed the servant not to touch his neighbour’s wall with the rubbish; the natural course of events dictated that the rubbish would eventually do so. As such, the master was liable for trespass.


Refer also: Kynoch v Rowlands [1912] 1 Ch 527


Closer to home, Abdul Malik Ishak J (retired JCA) endorsed both decisions (MBF Property v Madhill Development [1997] MLJU 309).


Rubbish dumping as nuisance


The Malaysian Courts have also recognised rubbish dumping as a subset of nuisance. In Abdul Ghapor v MPPJ [2020] MLJU 1941, Tun Majid J (in an assessment of damages application) made a finding that a development order which turned a once-quiet neighbourhood into an “urban slum” entitled the applicants to general damages. Amongst the issues raised were double-parking, traffic congestion and rubbish being strewn about. General damages of RM20,000 were awarded.


See also generally, Liew Choy Hong v Shah Alam Properties [1997] 2 MLJ 309; cf. Lee Boon Tien v Hiap Lee (Petrol) [2010] 2 MLJ 836; NBC Land v Majlis Perbandaran Klang [2019] MLJU 1255


Parking disputes


Parking bays are a different kettle of fish. Neighbours have been fighting over parking spaces from the inception of urban housing and Malaysia is no different.


As a general rule, one does not own the land outside one’s house (frontage). There are a dearth of Malaysian authorities on this but the High Court in Singapore (which utilises a similar Torrens land system as Malaysia) has clarified this in Peh Kah Chan v Tan Chong Realty [2016] SGHC 135. A landowner claimed that when he purchased a shoplot in the 1950s, it included the frontage and backyard. He had carried out renovation works on both portions of land.


The landowner’s sole claim to the frontage and backyard were the alleged promises made by the vendor. The landowner filed an Originating Summons and sought a declaration that the frontage and backyard were his.


The High Court dismissed his claim. The primary reason for the dismissal would be that in the original documents, the frontage and backyard were not referenced. Notwithstanding the alleged verbal promises, the vendor could not convey the same to the purchaser.


As such, only the plot of land referenced within one’s title is within one’s control. There can be no “booking” of parking spaces.


Blocking entryways


If, however, a neighbour should block one’s entrance into one’s own home, that may constitute an actionable nuisance. In Lai Kong Loke v Ting See Leng [2017] 7 MLJ 548, Hadhariah J (presiding JCA) made a finding that repeated parking which was in breach of the Road Traffic Rules 1959, coupled with it (parking) blocking the plaintiff’s ingress and egress, would constitute nuisance. The learned Judge stated as follows:

NUISANCE
[7] Private nuisance is an unlawful interference and/or annoyance which cause damages to an occupier or owner of a land in respect of his enjoyment of the land; see Ong Koh Hou v Perbadanan Bandar & Anor [2009] 8 MLJ 616; Pacific Engineering Ltd v Haji Ahmad Rice Mill Ltd [1966] 2 MLJ 142. Nuisance may be with respect to property or personal physical discomfort. The discomfort should be such as an ordinary or average person in the locality and environment would not put up or tolerate. In Sanders-clark v Grosvenor Mansions Company, Limited and G D’Allessandri [1900] 2 Ch 373; [1900] 16 TLR 428, an injunction was granted to prevent a person from turning a floor underneath a residential fiat into a restaurant and thereby causing a nuisance by heat and smell to the occupier of the flat. In Palmer v Loder [1962] CLY 2233, a perpetual injunction was granted to restrain the defendant from interfering with the plaintiffs enjoyment of her flat by shouting, banging, laughing, ringing doorbells or otherwise behaving so as to cause a nuisance by noise. Whether nuisance is committed or not is a question of facts to be decided based on the circumstances of each case.
[13] After hearing submissions from both parties, these are my findings. Although the defendant had denied he had parked his vehicle in front of the plaintiffs’ house, I find the defendant was not telling the truth. I accept PW1’s testimony that at least twice, the defendant had parked right in front of the plaintiffs’ house, preventing him from entering his house. From the photographs and CCTV recording, it is obvious to me that the defendant always parked at a corner and opposite the plaintiffs’ house. The parking at those places is illegal because it is parked on a yellow line and near a corner, an act prohibited under the Road Traffic Rules 1959.
Taking into account all these factors, it could not be disputed that the defendant’s parking had created a dangerous situation. The defendant had contended that so far there was no accident happens. Surely, this cannot be the right attitude. Judging from the defendant’s behaviour, I doubted the defendant would parked his vehicle elsewhere even after an accident has occurred, it is my considered view that the principle that road users must practiced give and take, as mentioned by the Federal Court in Au Kean Hoe’s case does not apply in this case because the defendant’s house has a parking lot that can accommodate three vehicles. This fact is not disputed. Parking lot is meant to park vehicle. Before this case, he had parked two vehicles in his house compound. But, now, he refused to park his second vehicle inside his house compound. He only parked one car in his house compound. He purposely parked his vehicle in front of the plaintiffs’ house to cause annoyance and intimidate the plaintiffs because the plaintiffs had sought assistance from the police and various local authorities. This case would not be necessary if the defendant had parked his vehicle in his house compound. I find the defendant’s conduct of parking his vehicle by the roadside instead of in his house compound which is a safer place is most unreasonable. I agree with the plaintiffs’ submission that Au Kean Hoe’s case does not apply here because the facts are different. For the illegal parking and the obstruction caused to the plaintiffs, I hold the defendant has committed a tort of private nuisance against the plaintiffs.


Conclusion


In concluding, love thy neighbour as thyself, but don’t take down that fence.


One must always be mindful that when living in close proximity, some give and take must happen. However, when more taking occurs than giving, a civil suit may be the sole remedy.


GAVIN JAYAPAL

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