Building Authority v. Appeal Tribunal (Buildings)
Read the full judgment text of HCAL 14/2014 on BabelCite. This High Court CFI judgment was delivered on 22 October 2015.
1. This is the application by the Building Authority (“the BA”) to judicially review the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the Tribunal”) dated 13 November 2013.
Cites 3 cases
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HCAL 14/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 14 OF 2014
_______________ JUDGMENT A. INTRODUCTION 1.This is the application by the Building Authority (“the BA”) to judicially review the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the Tribunal”) dated 13 November 2013. 2.By way of the Decision, the Tribunal by majority allowed the appeal by Mr Yu (the interested party) and set aside the Dangerous Hillside Order (“the DH Order”) issued by BA to Mr Yu on 17 October 2008. The DH Order is in relation to a feature located adjacent to Lot Nos 556 and 577 in DD 185. I will refer to Lot Nos 556 and 557 conveniently as “the Lots”. 3.In this judicial review, the BA seeks an order to quash the Decision and remit the appeal to the Tribunal for reconsideration. 4.As I will explain later, the judicial review turns on what is the proper construction of the meaning of the word “appertain” contained in the relevant Government leases relating to the Lots.[1] B. BACKGROUND B1. The Lots and the relevant Government leases 5.Mr Yu is the owner of Lot No 556 and one of the trustees of Lot No 557. The Lots were respectively subject to New Grant No 8481 and New Grant No 8482 (collectively “the Government Leases”). As identified by the Tribunal at paragraph 6 of the Decision, the Government Leases were deemed to have incorporated all the terms and conditions contained in Schedule B provided in the gazetted Government Notification No 364 of 1954. 6.One of these conditions is condition 6 of Schedule B (“Condition 6”). For the present purposes and the purposes of the appeal, Condition 6 provides relevantly as follows:
7.Condition 6 is also generally referred to as the General Maintenance Condition (“the GMC”). I will use these terms inter-changeably in this judgment. B2. The issue of the DH Order and the appeal 8.It was BA’s view that there is a Feature No 7SW-B/C726 (“the Feature”) adjacent to No 192 Pai Tau Village (“House No 192”), Shatin, which is in turn adjacent to the Lots, that was liable to become so dangerous that it would or likely to collapse thereby causing or likely to cause a risk of injury to persons or damage to property. 9.The Feature is a soil cut slope in L-shape facing southwest with the length of 40m, a maximum height of 14m and a slope angles between 45-70°. House No 192 is located near the toe of the Feature. There are also three other cottages at the Feature toe, of which two are on the west and one is on the east of the Feature. Beyond the crest of the Feature is a vegetated natural hillside. 10.It is common ground that the Feature is not located within the Lots but lies within Government land adjacent to the Lots. 11.Under section 27A of the Buildings Ordinance (Cap 123) (“the BO”),[2] the BA may effectively order a person to maintain and repair the Features if he is a person who, under the terms of a Government lease, is under such an obligation to do so. 12.It is the BA’s position that Mr Yu as the lessee is obliged under the Government Leases to maintain and repair the Feature. Thus, in the exercise of its power under section 27A of the BO, the BA issued the DH Order to Mr Yu to require him to do so. 13.Dissatisfied with the DH Order, Mr Yu appealed to the Tribunal the BA’s decision to issue the same. 14.Although he did not challenge the dangerousness of the Feature, Mr Yu argued in the appeal that, as a matter of construction, he was not liable under the GMC to maintain the Feature which falls on Government land and outside the Lots. 15.On this construction ground, the BA on the other hand contended that the Feature is one of those features that is “in any wise … appertain unto” the Lots or the buildings or erections erected on the Lots as provided in Condition 6. As such, Mr Yu had an obligation to maintain it. 16.Other than the construction ground, Mr Yu also argued in the appeal that he should not be responsible for maintaining and repairing the Feature because (a) the Feature was cut by the Government and therefore the Government should be responsible for its maintenance; (b) there was another nearby feature (Feature 7SW-B/R7) on Government land which was cut and made by the owner of the adjoining lot whereby the Government had taken up the maintenance responsibility; and (c) the Government had previously assumed maintenance responsibility towards Section 3 of the Feature (ie, Feature 7SW-B/726(3)) (collectively, “the Other Grounds of Appeal”). 17.The Tribunal heard evidence from both the BA and Mr Yu in respect of all of the grounds raised in the appeal. B3. The Decision 18.As mentioned above, one of the grounds of appeal related to the construction of the GMC as to whether, on a proper construction, Mr Yu has an obligation to maintain and repair the Feature which lies outside the Lots. 19.Central to that ground was the contentions relating to what is the proper meaning of the word “appertain” in the following part of the GMC:
20.For this question, the Tribunal by a majority of two to one came to the conclusion that, as a matter of construction, (a) the word “appertain” bore the same meaning as the word “belong”; and (b) that meaning only refers to features that are located within the lot granted under the relevant Government lease. In coming to this conclusion, the Tribunal agreed with and followed the majority decision of another Tribunal in Building Appeal Case No 368 of 2005 (“the Savoy Case”) dated 16 August 2011. The Tribunal was also of the view that the gazetted Chinese translation version of the GMC supported this construction. 21.The Tribunal explained these conclusions at paragraphs 31 and 35 - 42 of the Decision as follows:
22.In light of its conclusion on the construction point, and given that the Feature lies outside the Lots, the Tribunal therefore further concluded that Mr Yu had no obligation under Condition 6 to maintain or repair the Feature and allowed the appeal. 23.With this result on construction, the Tribunal then found it unnecessary to deal with the Other Grounds of Appeal or any of the evidence advanced in the appeal. In other words, the Tribunal did not make any findings on the evidence adduced or determine any of the Other Grounds of Appeal. See paragraphs 43 and 45 of the Decision. C. THIS JUDICIAL REVIEW C1. Grounds of judicial review 24.The BA raises three grounds of judicial review. They are all related to the Tribunal’s reasons in coming to its conclusion on the construction of the GMC. These grounds have been summarised by Ms Ng for the BA as follows:
25.I will look at these grounds in turn.[3] C2. Ground 1 – proper construction of the word “appertain” in the GMC 26.Construction of an agreement or deed is a question of law. 27.Under this ground, Ms Ng submits that the ordinary dictionary meaning of the word “appertain” means “to belong, or be suited, proper or appropriate to, or to pertain, relate”. See: The Shorter Oxford English Dictionary (3rd ed). 28.Counsel further submits that as the subject sentence in the GMC says “…belong or appertain unto the same”, the parties must have intended the word “appertain” in the GMC to have a meaning other than “belong” as, otherwise, the word “appertain” would have added nothing to the word “belong” and is superfluous. Given the general rule of presumption against redundant words,[4] Ms Ng contends that the proper meaning of “appertain” should therefore be “to relate”, which is both consistent with its ordinary and natural meaning, and is different from the meaning of the word “belong”. 29.Ms Ng then further submits that the Feature falls within the meaning of “…appertain unto the same” as it is “related” to the Lots or the Lot’s buildings and structures if it can be shown on the evidence that the Feature is:
30.Counsel also contends that the Tribunal’s reliance on the Savoy Case, which in turn relied on the case of Barlow v Rhodes (SC 3 Tyr 280) (1883) 1 C & M 439 at 475, to support its construction is erroneous. She argues that Barlow can be distinguished on the basis that it was concerned with the word “appertain” contained in a conveyance agreement, while the present case is about a maintenance clause. It is readily understandable, says Ms Ng, why the court would adopt a more restrictive construction of a clause in a conveyance, as it is concerned with the passing of title to properties. But there is no justification for the same restrictive approach to be adopted for a maintenance clause. 31.Ms Ng therefore says the Tribunal committed an error of law in following Barlow. 32.With respect to Ms Ng, I am unable to agree that Barlow is distinguishable as contended. 33.In Barlow, the plaintiff (who was owner of Lot A) claimed against the defendants, who were owners of Lot B, for trespass. A question raised in one of the defences was whether there was a relevant right of way passed to the predecessor owner of Lot B under the general words in the relevant deed “belonging or in any way appertaining.” 34.Lord Lynhurst, CB concluded that it could not. His Lordship was of the view that the usual legal meaning of the word “appertaining” should be adopted, which was to mean the same as “belonging”. He was also of the view that nothing in the circumstances of the conveyance shows that a wider meaning was intended. The learned CB explained as follows (at p 475):
35.The other members of the court[5] agreed with Lord Lynhurst. 36.I do not think this case can be distinguished from the present case as contended by Ms Ng for the following reasons. 37.First, Conditions 2 and 3 of Schedule B, which are also deemed to have been incorporated to the Government Leases, dealt with the conveyance of the Lots. They also contain the words “appertaining” as follows:
38.The same word “appertain” or “appertaining” should carry the same meaning in the Government Leases whether it is in Conditions 2, 4 or 6. In the premises, the same usual and ordinary legal meaning of the word “appertain” as explained in Barlow concerning a conveyance would apply to Conditions 2 and 4, which should therefore also apply to Condition 6. 39.Second, the reasons underlining the Barlow decision are that it was the usual legal meaning of “appertain” to mean “belong”. There is no suggestion that this usual and ordinary meaning is only limited to cases concerning conveyancing. 40.Third, and in any event, even in the dictionary meaning relied on by the BA, “appertain” could also mean “to belong”. 41.I therefore do not accept Ms Ng’s submissions that the Tribunal erred in law in following Barlow on the construction of the meaning of “appertain” to mean the same as “belong”. 42.As to Ms Ng’s reliance on the presumption against redundant words, it must be noted that this presumption is regarded as “particularly weak” in construing conveyancing documents. This is so as it has been observed that a “torrential” style of drafting has been traditional for many years in certain types of documents, such as leases. In such cases, the court cannot insist on giving each word in a series a distinct meaning because draftsmen frequently use many words either because it is traditional to do so or out of a sense of caution so that nothing which could conceivably fall within the general concept which they have in mind should be left out.[6] As observed by Hoffmann J (as he then was) in Tea Trade Properties Ltd v CIN Properties Ltd [1990] 1 EGLR 155 at 158:
43.I therefore do not think the general rule of presumption against redundancy assists Ms Ng. The GMC is a clause in the Government Leases, which obviously adopted a traditional drafting style. It should be noted that Schedule B containing these conditions was gazetted in 1954. I am further comforted to see that in Barlow, the court also had no difficulty in concluding that the word “appertaining” bore the same meaning as “belonging”, which was also used in the same clause in the subject deed. 44.For these reasons, I do not accept that the Tribunal committed errors of law in concluding that the meaning of “appertain” in the GMC was the same as “belong”. 45.However, that is not the end of the matter. 46.As I mentioned above, the Tribunal after concluding that “appertain” means the same as “belong”, it also further concluded (in adopting the majority decision in the Savoy Case) that this meaning refers only to features that are located within the Lots. See paragraph 31 of the Decision. 47.With respect to the Tribunal, I do not think this is correct as a matter of construction. 48.The relevant part of Condition 6 is:
49.In other words, under Condition 6, Mr Yu (as the lessee) has an obligation to maintain and repair:
50.Even if “appertain” means “belong” in this part of the GMC, I do not think it means (as the Tribunal concluded) that it refers only to “Walls, Banks, Cuttings Hedges, Ditches, Rails, Lights, Pavements, Privies, Sinks, Drains, and Water-courses” that fall or lie within the Lots. 51.The word “belong” bears an ordinary and natural meaning of “be rightly assigned or appropriate to as an adjunct” or “pertain or relate to” or “be connected as a member, part, inhabitant, dependency etc”. See The New Shorter Oxford English Dictionary. Thus, something would be regarded as belonging to a principal matter if it is part and parcel of the principal matter by being, say, substantially connected to or dependent on the principal matter. 52.Adopting this natural and ordinary meaning and understood in the context of Condition 6, the “Walls, Banks, Cuttings Hedges, Ditches, Rails, Lights, Pavements, Privies, Sinks, Drains, and Water-courses” that are “in any wise belong or appertain into the same” would include not only those that are located within the Lots, but also those which can be regarded as part and parcel of the Lots and/or the “erections and buildings at any time standing upon” the Lots. If they can be so regarded, they “belong or appertain” to the Lots or the erection and buildings standing on the Lots even if these features are located outside the Lots. 53.Whether any such features under consideration can be regarded as part and parcel of the Lots or the “erections and buildings at any time standing upon” the Lots is a matter of evidence to be assessed on a case by case basis. The court in this judicial review cannot and should not attempt to give an exhaustive list of circumstances that would satisfy that. 54.However, in my view, if it can be shown by evidence that certain feature, even though lying outside the Lots, is indispensible to the construction of the buildings of the Lots and/or essential to the survival of the buildings and structures on the Lots, it is likely that such a feature could be regarded as any wise “belonging” or “appertaining” unto the Lots or the erections and buildings standing on the Lots by being substantially connected to or dependent on them. 55.For these reasons, the Tribunal is wrong in law in construing that the meaning of “appertain unto the same” in Condition 6 refers only to those features that are located within the Lots. 56.I would therefore allow the judicial review on this ground. C3. Ground 2 – failure to apply the proper and well-established principle of construction of Government leases 57.Under this ground, it is contended that the GMC being a clause in a Government lease should be construed most beneficially for the Government as the grantor under the well established “inverted contra proferentum rule”.[7] It is further said that the Tribunal in its construction in the Decision erred in law in failing to have regard to this rule. 58.Given my conclusion above on construction, this ground does not add anything to the challenge under this judicial review. 59.However, insofar as necessary, I am not prepared to allow this judicial review on this basis alone. As stated by the learned editors in Chitty on Contracts, supra, at paragraph 12-086, this rule does not in any way override other principles of construction. In this respect, it appears to me that the Tribunal’s construction in the Decision was based on its view as to what was the clear and ordinary legal meaning of the word “appertain” by applying Barlow. Thus, the Tribunal did not think there was any ambiguity in the meaning of the word used. In such circumstances, I am not convinced that there is any room for the application of this rule. Alternatively, even if this rule was to be applied, it could not have displaced what the Tribunal regarded as the clear meaning of the word. C4. Ground 3 – the Tribunal was wrong in law to rely on the gazetted Chinese translated version of the GMC in its construction 60.Under this ground, Ms Ng submits that the Tribunal erred in law in relying on the Chinese translated version of the GMC as appeared in the Gazette in support of its construction. 61.Ms Ng says as a matter of principle, the court in a construction exercise should not prefer the Chinese translation to the English original text, if the English original version was inconsistent with the Chinese translated version. As said by P Cheung J (as the learned JA then was) in Chan Fung Lan v Lai Wai Chuen (HCMP 4210/1996, 31 December 1996) at p 8:
62.This is applied by H H Judge Lam (as the learned VP then was) in the Commissioner of Rating & Valuation v Chan Ho-chin Colin (LDMR 48/2000, 26 June 2001) at paragraphs 9 - 10. 63.With respect, I am unable to agree with Ms Ng’s contentions. 64.It can be seen that this principle only applies where there is an inconsistency in the meaning between the original English text and its Chinese translated version. 65.In the present case, the Tribunal first reached its conclusion on the construction of the meaning of the word “appertain” to mean the same as “belong” by looking independently at the original English text of the GMC alone. It then further concluded that, given this meaning, the word “appertain” only refers to features and things located within the Lots. As mentioned above, in coming to these conclusions, it followed the majority decision in the Savoy Case which in turn applied Barlow. See paragraphs 31, 40 and 41 of the Decision. 66.Thereafter, the Tribunal referred to the gazetted Chinese translated version of the GMC at paragraph 42 of the Decision as follows:
67.Thus, the Tribunal’s conclusion on construction was reached by looking at the original English text independently. That was why it rejected the Chinese translation version provided by the BA. In other words, it did not come to that conclusionby preferring the gazetted Chinese translated version to the original English test. It only said that the gazetted Chinese translated version supported its construction which was reached independently by looking at the original English text. 68.The above principle mentioned in Chan Fung Lan therefore simply does not apply. The Tribunal committed no error of law in this respect. 69.I would also reject this ground of judicial review. D. CONCLUSION 70.For these reasons, I would allow the judicial review on ground that the Tribunal committed an error of law in construing the word “appertain” (and thus “belong”) in the GMC to refer only to features that are located within the Lots. 71.I would quash the Decision and refer the appeal back to a differently constituted Tribunal for reconsideration. In reconsidering the appeal, the Tribunal should have regard to the court’s construction of the meaning of the words “appertain” and “belong” in the GMC as set out in paragraphs 44 - 55 of this judgment. 72.The BA has also sought at paragraphs 4 and 5 of the Form 86 declaratory reliefs that Mr Yu is under an obligation to maintain the Feature under Condition 6 and that the DH Order was rightly issued. These in effect amount to seeking a declaration that the appeal should be dismissed. 73.However, as I said above, whether the Feature is a feature that can fall within the meaning of “belong or appertain unto the same” (as now construed by this court) by being part and parcel of the Lots or the buildings and erections standing on the Lots is a question of fact which is dependent on the finding of the evidence. This is a task that should only be undertaken by the Tribunal in reconsidering the appeal by assessing the evidence but not by this court in judicial review. Moreover, it must not be forgotten that Mr Yu has also raised the Other Grounds of Appeal to say why he should not be responsible for maintaining the Feature. The merits of these grounds may not be dependent on the conclusion of whether Mr Yu has a contractual obligation under Condition 6 to maintain the Feature. These grounds, which have not yet been considered by the Tribunal before (see paragraph 23 above), should, if necessary, also be considered by the Tribunal in rehearing the appeal. I would therefore refuse to grant these reliefs. To be fair, Ms Ng did not seriously ask for these reliefs at the hearing. 74.As to costs, since the BA is successful in this judicial review in seeking to quash the Decision, I would further make an order nisi that costs of this application be to the BA, to be taxed if not agreed. The order shall become absolute 14 days from today, unless any of the parties applies to vary it by summons before then.
Ms Queenie Ng, instructed by the Department of Justice, for the applicant The respondent excused from attendance The interested party appeared in person [1] Although the Decision is in Chinese, and Mr Yu acts in person, given that the relevant Government leases are drafted in English and the judicial review turns on the construction of the meaning of the English word “appertain”, the hearing was conducted in English, with the presence of a court interpreter to assist Mr Yu. I have also indicated that the judgment would be in English and when it is handed down, the court would arrange an interpreter to translate it to Mr Yu. [2] Section 27A(1) of the BO provides: “Where in the opinion of the Building Authority any natural, formed or man-made land, or any earth-retaining structure, has due to any cause been rendered so dangerous or liable to become so dangerous that it will collapse, or be likely to collapse, either totally or partially, and thereby will cause, or will be likely to cause, a risk of injury to any person or damage to any property, the Building Authority may by order in writing served on the owner of the land or structure, or on the person who under the terms of a Government lease is under an obligation to maintain the land or structure, declare the land or structure to be dangerous or liable to become dangerous.” Under the other subsections, the BA can by the order issued under subsection (1) require such a person to maintain and repair the dangerous land or structure. [3] Mr Yu in opposing this judicial review has submitted voluminous written submissions and materials before, during and after the hearing. These submissions and materials principally accuse the BA and its officers of being oppressive, and making and using fraudulent submissions and evidence in the appeal. However, as can be immediately seen from the reasons of the Tribunal’s Decision and the grounds of judicial review, this judicial review concerns solely with the proper construction of the meaning of the word “appertain” in the GMC. This is purely a legal question. Mr Yu’s said submissions and materials therefore are entirely irrelevant to this judicial review application. The court would not deal with any of them. [4] See Lewison, The Interpretation of Contracts (5th ed), paragraph 7.03. [5] Baley, B, Bolland, B and Gurney, B. [6] See: Interpretation of Contracts, supra, at paragraph 7:03 at pp 344 – 345. [7] See: Feather v The Queen (1865) 6 B & S 257 per Cockburn CJ; as adopted in Gold Shine Investment Ltd v Secretary for Justice (unreported, HCMP 1272/2008, 29 December 2009) at paragraph 12, per To J. See also: Chitty on Contracts (31st ed, Vol 1) at paragraph 12-086; Lewison, The Interpretation of Contracts (5th ed) at pp 371 and 372. | |||||||||||||||||||||||||||