Building Authority v. Appeal Tribunal (Buildings) and Another
Read the full judgment text of HCAL 11/2014 on BabelCite. This High Court CFI judgment was delivered on 4 September 2015.
1. This is the Building Authority (“the BA”)’s application to judicially review the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the Tribunal”) dated 7 November 2013.
Cited by 6 cases · Cites 7 cases
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HCAL 11/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST _______________
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________________________ J U D G M E N T ________________________ A. INTRODUCTION 1.This is the Building Authority (“the BA”)’s application to judicially review the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the Tribunal”) dated 7 November 2013. 2.The Decision allows with certain conditions the Methodist Church (“the Church”)’s appeal against the BA’s disapproval of the Church’s general building plan (“the General Plan”) submitted on 4 December 2009 for the redevelopment of its site (“the Site”) located at around the junction of Kennedy Road and Queen’s Road East. The disapproval is contained in a letter dated 28 December 2009 (“the Disapproval Letter”). 3.The BA seeks in this judicial review an order to quash the Decision on the bases that it is tainted by a number of errors of law and that the various conclusions therein are irrational. I will elaborate on these grounds later. The BA is represented by Mr Ambrose Ho SC, leading Mr Abraham Chan. 4.The Tribunal (as the respondent) has remained neutral and not taken any steps in this application. The Church (as the interested party) opposes the application and is represented by Mr Ismail. 5.To put the Decision in proper context, I need to first set out the relevant background leading to the appeal before the Tribunal. B. BACKGROUND B1. The relevant statutory provisions 6.The following statutory provisions are relevant for the present purposes. 7.Under section 14 of the Buildings Ordinance (Cap 123) (“the BO”), plans for building works must be submitted for approval by the BA before any building works could commence. 8.Section 16(1) of the BO provides for the grounds upon which the BA may refuse to approve any plans for building works. Relevantly, the BA may refuse to approve a building works plan on, among others, the following grounds:
9.At the same time:
10.Further, Regulation 41 of the Planning Regulations provides that every building which exceeds six storeys in height shall be provided with a second staircase (in addition to the main staircase) as means of escape (“MOE”) in case of emergency. In this respect, the MOE Code of Practice (“the MOE Code”) published by the BA provides at paragraph 8.2 that every exit route of the MOE should lead directly to a street or an open area at ground level having unobstructed access. 11.Finally, Regulation 90 of the Building (Construction) Regulations (Cap 123B) (“the Construction Regulations”) provides that every building shall be constructed to have the necessary fire resistance construction. B2. The Site and the General Plan 12.The Site is on the Remaining Portion of Inland Lot No 1316 at 271 Queen’s Road East. It is a corner site located at the South-West corner of Queen’s Road East and Kennedy Road. 13.To facilitate an easier understanding of the issues raised in the appeal and also this judicial review, I have attached to this judgment as Annex I a plan (“the Site Plan”) of the Site. This is the same plan that is included in the Decision under paragraph 12. 14.It can be seen from the Site Plan that Queen’s Road East lies on the northern boundary of the Site, while the adjoining Kennedy Road lies on its eastern boundary. 15.On the Site, the Church erected the existing church building in the 1960s. It consisted of a 2-storey building and a 3-storey extension. The respective layout plans of the church building and the proposed extension for the church building were respectively approved by the BA on 21 March 1964 and 21 March 1978. 16.The Church intends to redevelop the Site. The proposed church is a 25-storey building with a basement. It is proposed to be used for church, religious and charitable users as well as the minister’s residence. 17.The Church initially submitted to the BA a general building plan (“the November Plan”) of proposed redevelopment for approval in October 2009. This was rejected by the BA in a letter dated 4 November 2009 (“the November Disapproval Letter”). On 9 December 2009, the Church through its authorised person (“AP”) re-submitted the General Plan as the latest plan to the BA seeking its approval. 18.In the General Plan and the AP’s application, the Site was submitted as a “Class B site”. It is the Church’s position that the Site has at least 40% of its boundary abutting Queen’s Road East and Kennedy Road. The proposed site coverage was therefore also prepared on the basis of the plot-ratio permissible under a Class B site. 19.As can be seen from the Site Plan, there is no question that the Site abuts Queen’s Road East. However, the south eastern corner of the Site is separated from the existing Kennedy Road by a triangular shaped area (“the Triangular Area”). The Triangular Area is created over the years by the step-by-step straightening and widening of Kennedy Road. Thus, historically, before the creation of the Triangular Area as a result of those straightening and widening works, Kennedy Road wound around and along the south east side of the Site. 20.The Triangular Area is a government land, which was allocated to the Department of Health for the Wan Chai Polyclinic. It was part of the site of the Polyclinic in 1979, and is now occupied as part of the open car park of the Polyclinic. The Triangular Area almost touches the existing Kennedy Road at its northern tip and is more than 4.5m wide at the southern portion. 21.By the Disapproval Letter, the BA disapproved the General Plan on the following bases:
B3. The appeal 22.The Church lodged an appeal with the Tribunal against the BA’s said disapproval of the General Plan. 23.The appeal was heard before the Tribunal for three days in October 2011. At that time, the Tribunal members made a visit to the Site with the parties. As recorded in the Decision, the Tribunal members also later paid their own visits to the Site after the hearing in the absence of the parties. In the appeal, the Church was represented by Mr Ismail, and the BA by Mr Abraham Chan. 24.Some two years after the hearing, on 7 November 2013, the Tribunal gave its Decision. B4. The Decision 25.In the Decision:
26.The Tribunal therefore allows the appeal but with the further conditions that (a) the Church should re-submit within 90 days a revised building plan to the BA for approval but only with revisions relating to the MOE and Firewall issues; and (b) the BA shall within 45 days thereafter decide whether to approve the revised building plan only in relation to the MOE and Firewall issues and the BA cannot adopt their prior grounds (ie, the MOE and Firewall Grounds) in that consideration. It has also ordered costs against the BA (see paragraphs 98 ‑ 109 of the Decision). C. THIS JUDICIAL REVIEW 27.In this judicial review, the BA challenges each of the Tribunal’s above conclusions, including the way in which its final order is made. I will deal with each of these challenges below. C1. The Classification Conclusion 28.There is no dispute that the crucial question in the appeal in relation to the Classification Ground is whether the Site can be regarded as having at least 40% of its boundary abutting two “specified streets” for the purpose of Regulation 18A. 29.Before the Tribunal, the Church’s case on how the Site abuts Kennedy Road was run on the following submissions:
30.Moreover:
31.The Tribunal in considering the Classification Ground in the Decision has on its own motion divided the Triangular Area into four portions, namely, the Tip Section, the Sidewalk Section, the Right-of-Way Section and the Remaining Section (see paragraphs 40 ‑ 41 of the Decision). 32.For convenience, I have also attached to this judgment as Annex II the diagram whereby the Tribunal has divided the Triangular Area into those four sections. This is the same diagram included at paragraph 40 of the Decision. As mentioned by the Tribunal, these sections are:
33.It must be noted that in dividing these four sections, the Tribunal has not provided any basis or measurements as to how the Triangular Area is divided into these sections. In other words, one reading the diagram and the Decision would not be able to identify with any precision or certainty as to the position and actual dimensions of each of these sections. 34.After setting out these four sections, the Tribunal then went on at length to decide section by section as to whether each of these sections can be regarded as a “specified street” under the various criteria provided at Regulation 18A(3)(a) of the Planning Regulations. For example:
35.The Tribunal’s above approach in determining whether the Triangular Area is a “specified street” has led to the BA’s primary challenge in this judicial review. It is submitted by Mr Ho that the Tribunals’ above decision under the Classification Ground is premised solely on its finding that the relevant portions of the Triangular Area can on their own right be regarded as a “specified street”, but those conclusions are wrong in law as the basis upon which those conclusions are made are either without any evidential basis or by wrongly applying the legal principles. Mr Ho has made elaborate and persuading submissions in support of these contentions. 36.Mr Ismail accepts in this application that it is true that the Tribunal did make certain conclusions on whether the various portions of the Triangular Area are “specified street” on their own right. However, counsel also submits that the Tribunal has in any event also made factual findings based on the fact and degree test that, at the least, the Tip Section and the northern part of the Sidewalk Section do not prevent the Site from abutting Kennedy Road. This finding is sufficient to enable the Site to have the necessary abutment to satisfy the 40% requirement to make it classified as a Class B site. Given that this is a factual finding based on evidence, which the court in judicial review should not normally interfere, there is simply no basis for the court to quash the Decision based on a challenge of the Tribunal’s alternative and further conclusions on “specified street”, as this finding has nothing to do with those conclusions even if they were all wrong in law as submitted by the BA. 37.These contentions require me to examine the Tribunal various conclusions made under the Classification Conclusion to see:
38.It is clear that the Tribunal is fully aware of the fact and degree test, as set out at paragraphs 33 ‑ 37 of the Decision. 39.The question is whether it has applied this test based on the evidence to the Tip Section and at the least the northern part of the Sidewalk Section to find the necessary abutment. 40.As to the Tip Section and the northern part of the Sidewalk Section, the Tribunal explains why there is the necessary abutment through these sections at paragraphs 44 ‑ 49 and 76 ‑ 77 of the Decision as follows:
41.I must agree with Mr Ho that these paragraphs depict a rather confusing analyses by the Tribunal as to on what basis it says the Site abuts Kennedy Road through the Tip Section and the Sidewalk Section. For example, it seems to first say that the Tip Section itself is a specified street in meeting the criterion under Regulation 18A(3)(a)(i) (ie, the section was maintained by the Highways Department) (see paragraphs 44 ‑ 46 of the Decision). However, this cannot be correct, as firstly the Church did not advance any argument in the appeal that any part of the Triangular Area can be regarded as a specified street by reason of Regulation 18A(3)(a)(i), and secondly, it is accepted by the Tribunal itself that there are submissions that the Tip Section is not maintained by the Highways Department (see paragraph 69 of the Decision). The Tribunal also then appears to suggest that the Tip Section and the Sidewalk Section are also specified street themselves as they are the continuation of the footpath of the existing Kennedy Road (which is in essence part of the Church’s contentions made under the Once a highway, Always a highway Submissions). However, at the same time, the Tribunal refers here and there to the Estoree and Mightystream cases in making or referring to the above observations, which seems to suggest that it has in its mind the fact and degree test (see in particular paragraphs 49 and 77 of the Decision). 42.I therefore agree with Mr Ho’s submissions that it simply cannot be worked out with any degree of confidence and certainty that the Tribunal does make an independent finding of fact based on the fact and degree test (which is backed by clear reasons and evidence) that the Site abuts the existing Kennedy Road notwithstanding the separation created by the Tip Section and northern section of the Sidewalk Section. 43.Seeking to reconcile these paragraphs, Mr Ismail however submits that reading the above paragraphs objectively, in particular, the underlined parts, it is clear that the Tribunal has separately and independently made a finding based on the fact and degree test that the Site abuts Kennedy Road by reason of its finding that these sections should continue to be regarded as part of the Kennedy Road, but not on the basis that the Tip and northern part of the Sidewalk Sections are on their own a specified street. 44.To illustrate his above contentions, Mr Ismail submits at this hearing that paragraph 46 of the Decision should be read and understood as with the following underlined words: “The Tribunal therefore determines that the Tip Section also falls within the definition of a ‘specified street’ under [Regulation] 18A(3)(a)(i) as part of Kennedy Road”. This is so as (says Mr Ismail) it was his primary submissions[7] made before the Tribunal that the Triangular Section should be regarded as being maintained by the Highways Department because it was part of Kennedy Road. Since it was not his case that there is evidence in the appeal to show that any parts of the Triangular Area are in fact maintained by the Highways Department, Mr Ismail therefore emphasises that the Tribunal’s reference to Regulation 18A(3)(a)(i)[8] in this paragraph must therefore be based on this part of his submissions and should be understood as such. 45.Thus, Mr Ismail confirms that it is the Church’s case in this judicial review that Tribunal has ruled on the fact and degree test in relation to the Tip Section and at least the northern part of the Sidewalk Section by finding that these sections should continue to be regarded as part of Kennedy Road. Counsel then submits that this is a fact finding conclusion, which cannot be said to Wednesbury unreasonable, in particular given that the Tribunal members had personally visited the Site. The court in judicial review has no basis to interfere it. 46.With respect to Mr Ismail, even taking his case to the highest, I have come to the view that this conclusion on the part of the Tribunal is not supported by any rational basis and is thus unlawful. My reasons are as follows. 47.It must be noted, as I have summarised above, that the Church’s primary case before the Tribunal is that the Triangular Area should continue to be regarded as part of Kennedy Road given its historical development considered under the once a highway, always a highway principle. In other words, the case of the Triangular Area continuing to be part of Kennedy Road is part and parcel of the Church’s case run on the Once a highway, Always a highway Submissions. There were no separate submissions made by the Church that Triangular Area could still be regarded as part of Kennedy Road by applying the fact and degree test. 48.However, the Tribunal has concluded at paragraph 69 of the Decision that it does not need to decide on the Church’s case on the Once a highway, Always a highway Submissions. It explains this as follows:
49.Thus, the Tribunal is unable to decide on whether the Triangular Area can in fact be considered as part of a highway (being part of Kennedy Road) because of the lack of evidence and submissions. 50.As such, once it has decided not to determine the Once a highway, Always a highway case for lack of relevant evidence and submissions, there is no more rational basis for the Tribunal to then conclude that these relevant sections of the Triangular Area can continue to be regarded as part of Kennedy Road. This is so since, as I have noted above, the Church’s case in continuing to regard the Triangular Area as part of Kennedy Road is part and parcel of its case on the Once a highway, Always a highway Submissions. 51.In my view, the Tribunal’s above irrational conclusion on finding those sections of the Triangular Area as part of Kennedy Road notwithstanding its refusal to deal with the Once a Highway, Always a highway submissions is a result of having confused the Church’s submissions based on the Fact and Degree Submissions and the Once a highway, Always a highway Submissions. This confusion is probably further contributed by the fact that (a) the Church had relied on the Underground Area to support both its primary Once a highway, Always a highway Submissions as well as the alternative Fact and Degree Submissions (see paragraphs 29(1) and (3) above); and (b) the two years lapse of time between the hearing and the Decision. This finding of the Decision is thus unlawful for lack of a rational underlying basis. 52.Further, and in any event, this conclusion is in my view also tainted with procedural unfairness as the BA had not been given an opportunity to make any submissions to deal with the case that, by way of a fact and degree test but not otherwise, these sections can continue to be regarded as part of Kennedy Road. As I observed above, that there were no separate submissions in the appeal made by the Church that Triangular Area could still be regarded as part of Kennedy Road by applying the fact and degree test. 53.I therefore agree with Mr Ho that this part of the conclusion is unlawful and should be quashed.
54.Regulation 18A(3)(a)(iv) provides that a street is a “specified street” if it is on “land over which the owner of the site is expressly granted, by or by virtue of an instrument, a right of way exercisable at all times”. 55.The Tribunal at paragraphs 50 ‑ 59 of the Decision finds that the Tip Section, the Sidewalk Section and the Right of Way Section satisfy Regulation 18A(3)(a)(iv) and thus are a specified street. It explains its conclusion relevantly as follows:
56.In gist, the Tribunal concludes that the Tip Section, the Sidewalk Section and the Right of Way Section by themselves are such a specified street under Regulation 18A(3)(a)(iv). This is so because it has found as a fact that the Church “has been allowed both pedestrian (eg the Church’s disabled members) and vehicular access and a right of way through the Triangular Area (across the Right of Way, the Tip Section and the Sidewalk Section) from Kennedy Road to the Site…” (see paragraph 58 of the Decision). 57.The Tribunal finds that there is such a right of way created by reference to a letter to the then Director of Medical and Health Services (“the Director”) dated 20 September 1977 (“the 1977 Letter”) and a series of letters exchanged between the relevant parties around that time (see paragraphs 52 and 57 of the Decision). It also holds that these series of letters, including the 1977 Letter, can be treated as “instrument” under Regulation 18A(3)(a)(iv). 58.The 1977 Letter was written by the Director to the Church in response to the Church’s letter dated 29 August 1977. At that time, the Church was planning to build an extension at the Site. The Church in the August letter indicated that they wished to provide access for “disabled and wheelchair members of the congregation” going to the Church to enter on one level without having to negotiate stairs. They also wished to provide a “car space” for the minister who would have his office in the new extension building. They therefore wanted to explore the possibility of asking for a surrender to the Church of a small area of the Triangular Area to create the said access and car space. In that letter, it was stated expressly that the Church understood that “no approach can be made to the appropriate authority without first having” the goodwill and agreement of the Medical and Health Department (“the Department”). 59.In the 1977 Letter and in response to the Church’s August letter, the Director stated relevantly as follows:
60.Other than these two letters, included in the evidence for the appeal are also a number of other correspondences exchanged between the Department (and the Chief Physician of the Polyclinic) and the Church between September 1977 and May 1980,[9] which effectively show that the Department or the Polyclinic was agreeable to allow the Church’s disabled and wheelchair members and the minister’s car to have access through a small area of the Polyclinic carpark (which is in the Triangular Area) to go to the Church building. 61.Mr Ho for the BA challenges the Tribunal’s conclusion that a right of way has been created over these sections of the Triangular Area. He submits that the conclusion is tainted by a number of errors of law or Wednesbuary unreasonable. Mr Ho has made elaborate submissions on these errors, and I hope I can be forgiven for summarising them briefly as follows:
62.I think there is much force in Mr Ho’s above submissions. 63.However, I do not think it is right and appropriate for me to give a final conclusion on these submissions at this stage. Instead, I think it is only right for me to quash this part of the conclusion and remit it back to the Tribunal for reconsideration for the following reasons. 64.It is important to first note that the Tribunal in arriving at this right of way conclusion has relied on and referred to the 1977 Letter and a series of correspondences. However, the Tribunal has singularly failed to identify what these series of correspondences are. Related to this, it has also not identified the latest time as to when (and why at that time) it says the right of way was created. Without identifying these in this part of the Decision, one can only be speculative as to the bases and reasons why the Tribunal has come to the view that the totality of these correspondences gives rise to the relevant right of way over the Triangular Area. For example, one simply is unable to know which parts of what other correspondences that the Tribunal has taken into account to support its finding of the right of way. Without these, one is also unable to form an intelligible understanding as to the reason why the Tribunal find those parts of the unidentified correspondences support a right of way. As such, in my view, the Tribunal has failed to give adequate reasons to allow a legitimate and intelligible understanding of its conclusion. This part of the finding should thus be quashed for lack of adequate reasons. 65.The Tribunal’s failure to give adequate reasons on the other hand makes it inappropriate for this court to come to a firm conclusion in relation to Mr Ho’s above complaints as, in my view, the merits of these contentions are highly contextual based. 66.For example, I think there is substance in the contention, as a matter of purposive construction that the word “instrument” should be given a narrow meaning as “formal legal document” given the legislative history of this provision and the context that this provision deals with important matters relating to site classification and thus plot ratio by reference to an interest in land exercisable at all time. However, as Mr Ho fairly emphasises and accepts, the word “instrument” does not only mean “deed” and it is also not necessary for the court to give an exhausting meaning of the word “instrument”. He also accepts that it is not his case that a letter or a series of letters can never constitute formal legal documents. What he however asks this court to conclude is that the types of letters shown in the present case cannot fall within the meaning of “formal legal document”. With respect, I do not think the court can come to that conclusion at this stage without knowing which of these correspondences the Tribunal has relied on to reach its conclusion and the reasons for doing so.[13] I should therefore refrain from forming a conclusion now, in particular when the matter is to be remitted for reconsideration by the Tribunal. 67.Similarly, for the validity of the other complaints made by Mr Ho, they are also dependent on looking at say (a) what are the correspondences that the Tribunal has relied on and the reasons for coming to that conclusion; and (b) when the Tribunal say at the latest the right was created (for example, the complaint relating to the Tribunal’s taking into account subsequent conducts). The court at this stage should not pre-empt any conclusions which are evidence linked. 68.For these reasons, I would also quash the Tribunal’s conclusion based on the finding of the right of way for lack of adequate reasons, and remit the same to the Tribunal for reconsideration. C2. The Traffic Information Conclusion 69.Relevant to this are sections 16(1)(h) to (j) of the BO, which are as follows:
70.Thus:
71.As mentioned above, in the Disapproval Letter, the BA also referred to the Church’s failure to deal with certain traffic related issues as follows:
72.Annex I set out the ACT’s comments as follows:
73.In relation to this disapproval ground, the agreed issue in the appeal is whether the Church has provided sufficient particulars in answering the ACT concerns. See the “Traffic Issue” identified under paragraph 13 of the Decision as follows:
74.Thus, the issue is whether it is correct for the BA to disapprove the plan on the ground that the Church needed to provide further particulars relating to the ACT’s concerns on traffic related matters. In gist, the ground under section 16(1)(i). 75.However, the Tribunal in the Decision decides in substance that the ACT’s concerns raised are not proper traffic matters that the BA is entitled to look into. The Tribunal arrives at that view by reference to the CFA judgment in China Field Ltd v Appeal Tribunal (Buildings) (2009) 12 HKCFAR 342. It therefore concludes that there is no valid traffic issue and there is therefore also no question for asking for further particulars. It even goes further to suggest that this is an afterthought of the BA. The Tribunal explains this at paragraphs 93 ‑ 97 of the Decision as follows:
76.I agree with Mr Ho that this conclusion of the Tribunal is faulted with errors of law for the following reasons. 77.First, the Tribunal has erred in law and exceeded its jurisdiction in the appeal by assessing the Traffic Information Ground on a substantive footing. 78.As the Court of Appeal noted in Lau Siu Kin Rembert v Building Authority [2013] 4 HKLRD 74 at paragraph 102, the extent of the Tribunal’s powers vary according to the subject matter of the appeal. Insofar as the subject matter concerns a request for particulars or further particulars (ie, under section 16(1)(i) or (j)), then the Tribunal can do more than confirm, vary or reverse the BA’s decision or substitute its own decision on whether particulars are required. 79.What the Tribunal cannot do is to determine the existence (or otherwise) of substantive grounds of refusal under section 16(1) (for example under section 16(1)(d) or (h)) by reference to the subject matter of the BA’s request for particulars. That is a matter for the BA. Since the BA itself had not made a decision either way on whether substantive grounds for refusal existed in respect of traffic, it was not for the Tribunal to take that decision for itself. See also Building Authority v Appeal Tribunal (Buildings) and Dobrowen Investment Ltd (unreported, HCAL 20/2011, 20 December 2011) at paragraphs 69 ‑ 76 (per Lam J as he then was). 80.Mr Ismail however submits that under this ground in the appeal, it must be open to the Tribunal to consider whether the BA was justified in the first place to ask for those particulars.[14] The Tribunal is therefore entitled to rely on China Field to effectively conclude that there was no justification for the BA to ask for further particulars. 81.In this respect, I accept Mr Ho’s further submissions that the Tribunal’s reliance upon the CFA’s judgment in China Field (see paragraph 59 of the Decision) is also an error of law. 82.The issue in that case was whether the BA was entitled to invoke section 16(1)(h) as a ground for substantively rejecting the plans before it on traffic grounds:
83.That is not the situation in the present appeal before the Tribunal. China Field therefore has no application to the appeal before it. 84.It follows that, in deciding that there was no traffic issue in the sense addressed in China Field (being a substantive reason for rejecting the plans), the Tribunal has misdirected itself by asking and answering the wrong legal question and acted inconsistently with the formulation of the Traffic Issue (being an agreed one) at paragraph 13.4 of the Decision. Its decision is tainted by an error of law. 85.In further response, Mr Ismail seeks also to argue at this hearing that the BA relied expressly on section 16(1)(j) instead of section 16(1)(i) in the Disapproval Letter to support this ground. Thus, this is a disapproval based on substantive ground in being dissatisfied with the earlier particulars provided by the Church after the BA had disapproved an earlier plan submitted in October 2009 on the basis of section 16(1)(i). This is a disapproval based on section 16(1)(j) on substantive ground but not on section 16(1)(i) in seeking further particulars. As such, the Tribunal is fully entitled and right to consider whether there is any substance in the traffic concern. 86.In relation to the plan submitted on 8 October 2009, the BA’s disapproval is contained in a letter dated 4 November 2009 (ie, the November Disapproval Letter). The relevant parts of that letter are paragraphs 7B and 11, which state as follows:
87.One can immediately see that the concerns raised by the ACT as recorded in the November Disapproval Letter are different from the ones set out in Appendix I of the Disapproval Letter. 88.It is also obvious that the BA in paragraph 7B of the Disapproval Letter was asking the Church to provide particulars in answer to the ACT’s second batch of concerns set out in Appendix I. These have nothing to do with the particulars provided under and after the November Disapproval Letter. This is also recognised by the Tribunal at paragraph 94 of the Decision (see above). 89.As such, although the BA only referred to section 16(1)(j) in the Disapproval Letter, properly understood objectively in context, it clearly also disapproved the General Plan on this occasion on the basis that further particulars were required to be provided in relation to the other concerns raised by the ACT, ie, on the basis of section 16(1)(i). This must have been so similarly understood by the parties as reflected by the Traffic Issue in the appeal as recorded by the Tribunal at paragraph 13.4 of the Decision. 90.In the premises, I reject Mr Ismail’s submissions that the BA did not disapprove the General Plan also on a section 16(1)(i) ground. 91.I therefore accept Mr Ho’s submissions that the Tribunal has erred in law in determining the Traffic Information Ground on a substantive basis. 92.Second, even assuming that it was proper for the Tribunal to make its own substantive assessment of the traffic situation, in doing so, the Tribunal has failed to take into account relevant considerations in only referring to the number of parking spaces at the Site as a reason for concluding there was no legitimate traffic concern as regards the General Plan. 93.From the comments raised by the ACT as recorded in Appendix I of the Disapproval Letter, the real concern as to traffic was not just that additional traffic would be caused by increased parking spaces at the Site but that additional traffic would inevitably be caused by:
94.This is turn could potentially give rise to grounds for disapproval based on, among others, possible dangers posed to users of the Site and the general public. 95.In failing to address the above concerns, the Tribunal overlooked material and relevant considerations as to traffic impact. This amounts to an error of law. 96.In the premises, the Tribunal’s conclusion is also unlawful in failing to take into account relevant consideration. 97.Finally, Mr Ho also challenges this part of the Decision by saying that there is procedural unfairness or irrationality in the Tribunal’s observation that the BA’s disapproval of the General Plan based on the Traffic Information Ground is an “afterthought” and “for the sole purpose of creating a blanket rejection”. 98.As far as I can see, reading objectively this part of the Decision, the Tribunal’s above observation does not form part of the reasons for or basis of the Traffic Information Conclusion. Therefore, I do not think it is necessary for the BA to challenge that in order to succeed in seeking to quash that part of the Decision. 99.However, in case I am wrong on this, I agree with Mr Ho that this part of the observation is obviously tainted with procedural unfairness or is unlawful since:
100.In the premises, if this observation forms part of the basis of the Traffic Information Conclusion, it is tainted by unfairness and is otherwise irrational, and should also be quashed on this basis. 101.For all these reasons, the BA also succeeds in this ground of judicial review. The Traffic Information Conclusion of the Decision should be quashed and remitted back to the Tribunal for reconsideration. C3. The MOE and Firewall Conclusions and the final order 102.The challenges of the MOE and Firewall Conclusions and the final order made in the Decision can and should be considered together, as they are interlinked. 103.The MOE Ground arose in the following way. 104.Paragraph 8.2 of the MOE Code provides as follows:
105.In the General Plan, as a proposed MOE, there is a staircase leading from the upper floors of the proposed building discharging people to the Triangular Area in front of the Polyclinic. 106.It is the BA’s view that this proposed MOE is not in compliance of paragraph 8.2 of the MOE Code, since the proposed exit does not lead directly to a “street” or “an open area” having unobstructed access. In particular, it is the BA’s view that the Triangular Area being part of the space of the Polyclinic is under the control of the Department. 107.The Church however argued that the BA was wrong in treating the Triangular Area as if it was not part of Kennedy Road. It is the Church’s contention that the Triangular Area came within the definition of a street and the MOE satisfied the MOE Code. 108.Whether the BA is correct in this view is a mixed question of law and fact, including what is the nature and use of the Triangular Area. 109.In the MOE Conclusion, the Tribunal however decides that this issue should be reconsidered by the BA in light of its earlier conclusion that at least a major part of the Triangular Area can continue to be regarded as part of Kennedy Road or that it is a specified street by reason of the right of way. 110.The Firewall Ground arose the following way. 111.Paragraph 7.4 of the Fire Resisting Construction Code (“the FRC Code”) provides as follows:
112.The BA in disapproving the General Plan on the Firewall Ground was of the view that, contrary to paragraph 7.4 of the FRC Code, the proposed building does not provide the requisite fire resistant wall with the adjoining site, being the Triangular Area. 113.After looking at various other paragraphs of the FRC Code and taking note of the Church’s contentions that the “site” referred to in paragraph 7.4 should be interpreted to mean a building instead of an existing open site, the Tribunal agrees with the BA that the “site” could mean an open site as the FRC Code should be “forward looking” (see paragraphs 88 ‑ 90 of the Decision). 114.However, the Tribunal further forms the view that the issue arising under the Firewall Ground is whether the majority part of the Triangular Area can be regarded as a “specified street”, since if it is so, then “the BA’s contention that the boundary of the site ends at the edge of the sidewalk abutting the ‘public’ Kennedy Road sidewalk” cannot be correct (see paragraphs 91 and 92 of the Decision). 115.For this, the Tribunal then says given its earlier conclusion that at least some parts of the Triangular Area is a “specified street”, this Firewall issue should also be remitted back to the BA together with the MOE issue for further consideration in light of the Tribunal’s finding vis-à-vis the Triangular Area. 116.The Tribunal says these at paragraphs 84, 85, 91, 92, and 101 ‑ 108 of the Decision on the MOE and Firewall issues and as to how they should be dealt with:
117.In substance, the Tribunal decides not to determine the MOE and Firewall Grounds in the appeal as the validity of these grounds would be affected by the Tribunal’s conclusion that the Triangular Area is either a specified street as part of Kennedy Road or by reason of the right of way. It further directs that the BA shall reconsider these and only these two issues upon the Church submitting a revised building plan for approval, where the revision shall also only be made in relation to these two matters. 118.Mr Ho submits that these parts of the decision as well as the final order made should be quashed for being wrong in law. This is so as the Tribunal has either abdicated its statutory duty under section 50 of the BO in not determining the MOE and Firewall Grounds (in particular in light of the Tribunal’s power to call for and hear additional evidence if necessary), or is acting unlawfully in making the final order which limits what the BA may do in deciding whether to approve or disapprove the revised plan. 119.Section 50 of the BO provides as follows:
120.I think there is some force in Mr Ho’s contention that the Tribunal has abdicated its duty. However, I also note that section 50(1)(c) (by the use of the word “may”) does not compel the Tribunal to receive and hear new evidence in determining any issues before it, while section 50(2) is drafted in wide terms in giving the power to the Tribunal to make “any such other orders as it thinks fit”. It is unlikely to be the intention of the legislature to limit the form of order that the Tribunal can make which it thinks is justified in all the circumstances of each case. 121.At the same time, in light of section 15 of the BO, I also think there are merits in Mr Ho’s contention that the conditional order made by the Tribunal is unlawful in limiting the bases upon which the BA may disapprove the revised plan submitted. 122.Section 15 of the BO provides as follows:
123.Thus, by statue, the BA is not to be prohibited from relying on other grounds of disapproval even if it has set out expressly certain grounds of disapproval in a letter. 124.As such, I cannot see how the Tribunal can by its order in requiring the BA to reconsider a revised plan limit the grounds upon which the BA can reject the plan. For example, even if the BA after looking at the revised plan (and even if the revisions only relate to the MOE and Firewall issues) finds that there are other good grounds to reject the plan although they have not been considered or set out previously in the Disapproval Letter, by reason of the order, it can no longer rely on those to disapprove the plan. That in my view would arguably be contrary to section 15(2) of the BO. Moreover, in revising the General Plan even only in relation to the MOE and Firewall issues as directed by the Tribunal, one cannot rule out the possibilities that that may result in making corresponding or necessary changes in relation to other parts of the plan. These changes may give rise to new grounds or legitimate concerns for the BA to disapprove the revised plan. I cannot see why and how the Tribunal can by way of its order dealing with the appeal lawfully and legitimately restrict the BA’s authority under section 16 to disapprove that revised plan on other grounds. 125.This also perhaps underlines the proposition as to why it is not a preferred or satisfactory way to deal with the MOE and Firewall issues in the way as the Tribunal has done. This would only result in further uncertainty. 126.However, I do not find it necessary to come to a firm conclusion on these contentions raised by Mr Ho, as the Tribunal’s MOE and Firewall Conclusions should be quashed on the basis that I have also quashed its conclusion that the Triangular Area is part of Kennedy Road or is a specified street by reason of a right of way. As such, there is no more rational and lawful basis to support the Tribunal MOE and Firewall Conclusion, and they must therefore be quashed. 127.Moreover, given that I have in the above quashed the Classification Conclusion, the MOE and Firewall Conclusions as well as the Traffic Information Conclusion, the final order must also be quashed. D. CONCLUSION 128.For the above reasons, the BA succeeds in this judicial review. 129.I will quash the Decision and remit the appeal back to a differently constituted Tribunal for reconsideration. I do not find it necessary or desirable to remit the matter to the same Tribunal. Leaving aside the practical question as to whether all the same members could still be reconstituted, these members heard the appeal almost four years ago and it would be unrealistic to expect that they could still usefully remember the evidence heard in the original appeal in October 2011. Coupled with my conclusion that the Tribunal had likely to have already confused the Church’s submissions in reaching the Classification Conclusions in the Decision, I do not think there is any advantage to be gained by remitting the appeal back to the same tribunal for determination. 130.In relation to costs, since the BA is successful in this judicial review, there are no reasons why costs should not follow the event. I would make an order nisi that the BA’s costs of this application to be borne by the Church, to be taxed if not agreed, with certificate for two counsel. This order shall become absolute 14 days from today unless any of the parties applies by summons to vary it. 131.Finally, I would like to thank counsel’s assistance in this matter.
Mr Ambrose Ho SC and Mr Abraham Chan, instructed by Department of Justice, for the applicant The respondent was not represented, absent Mr Anthony Ismail, instructed by Mayer Brown JSM, for the interested party
[1] See for example: Winsome Investment Co Ltd v The AG (unreported, HCMP 714/1980, 23 June 1982, per Jackson-Lipkin J) [2] This is an area shown in the 1964 and 1978 general building plans relating to the Site. [3] See paragraphs 42.1 ‑ 42.12 of the Church’s Opening Submissions for the appeal, paragraphs 13 and 20 of Closing Submissions, and paragraphs 2 ‑ 7.2 of the Church’s Additional Submissions on Underground Area. [4] See paragraphs 42.13 ‑ 42.14 of the Church’s appeal Opening Submissions and paragraphs 4 ‑ 12, 14 ‑ 19 of the Church’s appeal Closing Submissions [5] See paragraph 43 of the Church’s appeal Opening Submissions, paragraphs 22 ‑ 37 of the Church’s appeal Closing Submissions, and paragraph 7.3 of the Church’s Additional Submissions on the Underground Area. [6] See the witness statement of Mr Nelson Chan at paragraph 15 and the plan (as exhibit NC-19 to the witness statement) with which a green coloured portion (“the Green Portion”) of the necessary length was marked of the Triangular Area to show the minimum necessary length abutting Kennedy Road that the Church was required to show to succeed in its classification of the Site. [7] Under the Once a highway, Always a highway Submissions. [8] Which provides that a street is a “specified street” if it is vested in the Government and maintained by the Highways Department. [9] For example, a letter by the Director of Medical and Health Services to the Church dated 20 September 1977, a letter by the Church to the Director dated 11 October 1977, a handwritten letter by the Church to the Consultant Chest Physician of the Polyclinic [B2/342-3] and a letter from the Assistant Director of Medial and Health Department to the Church dated 13 May 1980 [10] See: The Shorter Oxford English Dictionary (5th edn), Vol 1, 1391. Further, Mr Ho says given the legislative history of this provision and the context that this provision deals with important matters relating to site classification and thus plot ratio by reference to an interest in land exercisable at all time, as a matter of purposive construction, the word should be given a restrictive and narrow construction. [11] See paragraph 58 above. [12] In material part, the letter stated: “I refer to your [the Church’s] letter…requesting for permission for your car to gain access to the parking area adjacent to the Methodist Church via the Polyclinic Car Park. This is to inform you that your request has been approved” (emphasis added) [13] Although there are only a number of correspondences and letters that are relied on by the Church and included in the hearing bundles in the appeal to support the Right of Way Submissions, I do not think it is appropriate for the court to speculate on which of these correspondences the Tribunal has relied on and its reasons for treating them as instrument. [14] This is distinguishable from Dobrowen Investment Ltd, supra, where Lam J noted at paragraph 70 that “it is not disputed that the comments needed to be addressed and the BA was justified in asking for such information.” | ||||||||||||||||||||||||
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