The Real Estate Developers Association of Hong Kong v. Building Authority

CACV 105/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 105 OF 2015

(ON APPEAL FROM HCAL NO. 95 of 2011)

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This is an appeal against Au J’s refusal of leave to apply for judicial review to challenge the policy of the Building Authority requiring a person submitting plans for approval to provide particulars of ownership or realistic prospect of control. The background leading to the decision of Au J was set out in our judgment of 27 May 2015 in HCMP 1746 of 2014 when we granted extension of time to appeal.

2.Since then the parties have filed written submissions according to our directions for the combined purposes of this appeal and the application for leave to appeal to the Court of Final Appeal with a view to have the appeal as well as the application for leave determined on papers.  The adoption of such unusual course is, as canvassed at the hearing on 14 May 2015 in HCMP 1746 of 2014, that both parties accepted that the appeal in this court must be dismissed in view of the various authorities which are binding on this court and the real purpose of these proceedings (as far as the Appellant is concerned) is to ask the Court of Final Appeal to consider the correctness of these authorities. 

3.The main authority which the Appellant would seek to re-visit in the Court of Final Appeal is the judgment of Lord Fraser given in the Privy Council on appeal from Hong Kong in A-G v Cheng Yick Chi [1983] 1 HKC 14.  It has been held recently by Fok JA (as he then was) in Lai Siu Kin Rembert v Building Authority [2013] 4 HKLRD 74 and Building Authority v Appeal Tribunal (Buildings) [2013] 4 HKLRD 52 that the relevant part of Lord Fraser’s judgment forms part of the ratio of that case and as such binding on this court.

4.As set out in the written submissions now placed before us, the only issue in the appeal is whether Lord Fraser was correct in holding that for the purposes of the Building Ordinance[1], a site can only include land which a person owns or which he has a realistic prospect of controlling. 

5.We have read the written submissions and we are grateful to counsel for their very clear and concise arguments on the issue.  However, in light of the binding nature of these earlier authorities, we may be forgiven for not discussing their arguments at length.  As acknowledged by Ms Cheng SC (acting together with Mr Leung for the Appellant in this appeal), this court has to dismiss this appeal irrespective of the merits of her arguments. 

6.We therefore dismiss the appeal with costs with certificate for 2 counsel.

7.As mentioned, parties have included in their submissions the arguments on the anticipated application for leave to appeal to the Court of Final Appeal.  At the direction of the court, the Appellant has provided a draft Notice of Motion formulating the following as the question for the determination of the Court of Final Appeal：

“ 1. Does the Building Authority have an unqualified power in all cases, subject only to ordinary public law requirements (such as fairness or rationality), to:

(1) reject building plans submitted for approval under s.14(1) Buildings Ordinance on the basis that a developer does not own or have a realistic prospect of controlling the site shown on the plans, or

(2) require particulars or proof of ownership or realistic prospect of control of a site shown on building plans as pre-requisites for his approval of such plans under s.14(1) Buildings Ordinance?”

8.The Appellant also undertakes to file that document together with the necessary papers for an application for leave to appeal to the Court of Final Appeal within 3 days from the handing down of this judgment.

9.In the circumstances, we are satisfied that we can also deal with the intended application for leave in this judgment. 

10.We agree that the question raised is a question of great general or public importance. Notwithstanding the submissions of Mr Yu SC (acting together with Mr Man SC for the Building Authority), we regard the question as being reasonably arguable. 

11.Subject to the compliance with the undertaking to file the necessary papers by the Appellant, we shall grant leave to appeal to the Appellant.  We also order the costs of that application be in the cause of the appeal to the Court of Final Appeal.  We further direct the Appellant to apply to the Court of Final Appeal in respect of the conditions for the bringing of such appeal.

Written submissions by Ms Yvonne Cheng SC and Mr Wilson Leung, instructed by Mayer Brown JSM, for the applicant (appellant)

Written submissions by Mr Benjamin Yu SC and Mr Bernard Man SC, instructed by the Department of Justice, for the respondent