Blendoran Ltd v. Appeal Tribunal (Buildings)

HCAL 25/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 25 OF 2015

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J U D G M E N T

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Introduction

1.This is an application for judicial review of a determination of the Appeal Tribunal (Buildings) (“the Tribunal”) dismissing the applicant’s appeal against a demolition order.

The facts

2.No 21 Plantation Road (“the Building”) has 3 flats and a roof.  The applicant has been the owner of the 3^rd floor flat and the roof (“the Property”) since 2001.

3.The Building was constructed in the early 1950s.  The original block plan for the proposed development of the Building was approved on 14 June 1950.

4.Prior to the applicant’s purchase of the Property, additional works, approved by the Building Authority (the “BA”) in 1968 (“the 1968 Approved Plans”) had been carried out.  These included a new lift shaft, lift machine room and drying room, all above the original roof level. 

5.The 1968 Approved Plans also showed earlier works, which included an upper roof as existing (“the existing upper roof”), which were not found on the originally approved building plans.  The earlier works effectively formed another storey over a significant part of the original roof area.  There were other unauthorized building works under the upper roof and additional construction on top of the upper roof. 

6.None of the approved 1950 plans and the 1968 Approved Plans showed BA’s approval to the earlier works in paragraph 5.

7.The submission card index of the Buildings Department showed that there were other plans for the Building:

(i) The RCC Plan (ie reinforced cement concrete) and Drainage Plan were received by the Department, on 4 July 1950 and 2 October 1952, respectively.  These 2 plans have gone missing.  The Buildings Department’s records show the relevant files to have been destroyed. 

(ii) The domestic permit for the Building was issued on 3 March 1953. 

(iii) The plans for the proposed lift installation were received on 29 March 1968.

8.BA issued a demolition order dated 1 March 2012 (“the Order”) pursuant to section 24(1) of the Buildings Ordinance, Cap 123 (“the Ordinance”).

9.The Order required the applicant to, amongst others, demolish the “structures added on the roof” (“the Structures”) of the Property.  The Order was made on the basis that the building works of the Structures were carried out without first having obtained from the BA approval of building plans and consent for commencement of such building works under section 14 of the Ordinance.  The Order also required the applicant to reinstate the parts of the Property in accordance with the approved plans.

10.On 20 November 2014, the Tribunal dismissed the applicant’s appeal against the decision of the BA (“the Determination”).  It found there to be unauthorized works.  There were missing plans.  The burden was on the applicant to show that the works on the roof were authorized and the standard of proof was on balance of probabilities.

11.The relevant parts of the Determination are as follows:

“37. The documentary evidence in relation to the approval of plans and what was approved or known about by the Respondent is unsurprisingly limited. The building, of which the Premises form part, was constructed in the early 1950s and there was approval of some additional works (inter alia) above the original roof level in 1968. The period being considered, therefore, commences over 60 years ago. However, in our judgment the evidence effectively pointed all one way and is sufficient to demonstrate in itself that there are significant unauthorised building works at the Premises. We address the extent of those works in paragraph 52 below.

38. Additionally, we accept the proposition advanced by the Respondent that the burden of proof, to show the works were authorized or the Respondent is somehow precluded from claiming they were not, rests on the Appellant. The Tribunal has been provided with approved plans for 21 Plantation Road from 1950 and 1968. The 1968 plans showed clearly the works for which approval was being sought and was obtained. The unauthorised building works, of which complaint is made, do not form part of what these plans show was approved. In such circumstances, where we have approved plans not showing approval of the works complained of, we consider the burden to show the works were authorized or in some way consented to falls on the Appellant. The Appellant has failed to discharge that burden on the balance of probabilities.” (emphasis added)

…

41. There is an issue between the parties as to whether the missing plans for the RCC (which there is no dispute refers to reinforced cement concrete) plan and the Drainage plan might have shown an upper roof level (in addition to the stairhood), which was then approved. There is no doubt the 1968 amendments plans showed such an upper roof. We consider the earlier plans would not have done so.

42. The reinforced cement concrete details and drainage details could only sensibly be showing the detail of the respective technical particulars for the approved building. They would have been the detailed plans for the reinforced concrete and drainage therefor. Had there been another roof shown on these detailed plans, there would need to have been another set of approved building plans (including amendment plans) showing a changed development. The reference in the building file dated 24 February 1953 can only, we believe, be to the approved plans, including the building plan of 4 May 1950. There is no record of any approval of a different building (as opposed to the reinforced concrete and drainage details) prior to 24 February 1953 when the buildings file states the 4 storey block was built in accordance with the approved plans.

43. We prefer the evidence of Mr Chu, which is consistent with the documentary evidence, to that of Mr Howes on this issue. Mr Howes expressed the view that the two missing plans giving the details of the concrete structure and the drainage might have contained details of an existing upper roof. Mr Chu’s evidence effectively was that the building layout in the plans in the destroyed files would have been the same as in the building plan approved in 1950. Neither of the experts, of course, had any direct experience of Buildings Department practice in the early 1950s.

…

47. There are no approved drawings for works above roof level at 21 Plantation Road between 1953 and 1968 in the material before the Tribunal. Plans may obviously sometimes be lost, but there is no record of such plans in the Buildings Department’s records which we have seen. The Buildings Department’s submission card index showed no submission of plans relating to 21 Plantation Road between 1953 and 1968. Both experts accepted that the submission of plans should have been recorded in the index had this occurred in the period from 1953 to 1968 and a file opened for such submission.

…

49. In our judgment, the evidence does not support the Appellant’s case that the structure above the original roof level up to and including the upper roof was ever approved or was a replacement for an approved structure. An architect submitting plans would have been obliged to identify existing structures abutting the new works for which approval was sought and the upper roof shown on the plan is, as we see it, nothing more than the identification of a structure already there. The Buildings Department records should have recorded plans submitted and approved, had they been, but do not, and we have no such plans.

50. The evidence also does not support the proposition that the Respondent somehow consented to this structure, so as to preclude him from claiming it is unauthorised now. This contention is also not pleaded in the Statement of Particulars. There was no probative evidence to support the existence of such a structure prior to the issue of the domestic permit for the block on 3 March 1953. There are aerial photographs which show what is likely to be such a structure, or part of it, taken in 1961 and photographs in 1963 do show an additional structure on the roof. The unauthorised structure at that stage (as the aerial photographs show) was nothing like as extensive as it now is. The approval given by the Respondent in 1968 was for the lift machine room and drying room on the roof. This does not indicate such consent and nothing else does.

51. Indeed it is strange, had there been approval or consent to an additional structure on the roof, that this was not shown on the roof plan annexed to the Deed of Mutual Covenant signed by the Appellant on 18 September 2001.

52. The photographs show a number of unauthorised structures constructed on the roof and the upper roof. …

53. There is no difficulty (as we see it) in identifying what has been approved above the original roof level from the approved plans, namely the stairhood, R.C. water tank and chimney stacks and the lift machine room and small adjacent drying room.

54. We see no basis for the argument that the existing or new works shown on approved plans justify not ordering the demolition of the other unauthorised works above the original roof level. The existing upper roof is shown on the 1968 approved plans, but was never approved. The other structures (identified in paragraph 52 above) are also unauthorised. We see no reason why their removal should not be ordered as building works carried out in contravention of the Ordinance.

(All paragraph numbers in brackets below are references to the Determination.)

Grounds for judicial review and grounds in opposition

12.The applicant advances 3 grounds of review:

(1) The Tribunal erred on the burden of proof (“Ground 1”);

(2) The Tribunal failed to attach appropriate significance to the missing RCC and Drainage Plans (“Ground 2”); and

(3) That in view of the presumption of regularity, the Tribunal erred in holding that the existing upper roof was erected in contravention of the Ordinance (“Ground 3”).

13.The BA’s grounds in opposition are as follows:

(1) As regards Ground 1, the Tribunal was referring to an evidential burden; in any event, it did not determine the case on burden of proof but was satisfied that the Structures had not been approved.

(2) Ground 2 did not identify an error of law.  The Tribunal has dealt with the missing RCC and Drainage Plans as a matter of fact.  The court will not interfere unless the Determination was Wednesbury unreasonable.

(3) Ground 3 was not raised before the Tribunal and it is not open to the applicant to argue it in a judicial review.

Legal principles in a judicial review

14.The court will not substitute its own view of the facts with those of the Tribunal, but only reviews its legality and procedural propriety.

15.In R v Hillingdon London Borough Council ex p Puhlhofer [1986] 1 AC 484, 518E, Lord Brightman held:

“Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

16.Similarly, in Building Authority v Appeal Tribunal (Buildings) & Estoree Limited, unrep, HCAL 147/2002, 25 July 2003, Hartmann J stated as follows at §58:

“This Court is not an appellate court. It does not evaluate the strengths and weakness of the evidence. The assessment of relevant facts and weighing of relevant considerations are a matter for the Appeal Tribunal, more especially as the Tribunal is a specialist professional body, chaired in this case by a legally qualified chairman with an engineer and an architect as members. Only on the basis of Wednesbury unreasonableness may the Tribunal’s determination be set aside if it is found otherwise to be correct in law”.

See also Sky Ace Enterprises Ltd v Appeal Tribunal (Buildings) & Building Authority, unrep, HCAL 157/2014, 13 June 2016 at §60, G Lam J.

17.The applicant does not suggest that there was procedural impropriety.  The court is thus concerned only with legality.

Ground 1: burden of proof

18.There is no dispute that the burden of proof was on the BA to establish that the Structures were unauthorized before an order could be issued under section 24(1) of the Ordinance: Fortune Wing International Limited v The Building Authority, Case No 99-99, unrep, 24 August 2000, at §27; Building Authority v Appeal Tribunal (Buildings), HCAL 47/2003, unrep, 7 August 2004, Chung J, at §2.

19.Generally speaking, the approved plans are the major source of reference to be used by the BA for the enforcement of the provisions of the Ordinance: Lo Yin Ming v Appeal Tribunal (Buildings) [2011] 3 HKLRD 586, at §29.

20.Paragraph 38 of the Determination is challenged in this judicial review.  Ms Eu SC, counsel for the applicant, submits that the Tribunal erred in law in placing the burden of proof on the applicant.  On the other hand, Mr Yu SC submits that the Tribunal merely placed the evidential burden on the applicant.

21.The evidential burden is described in this way in Phipson on Evidence, 18^th ed, §§6-02 to 6-03:

“The evidential burden is sometimes referred to as ‘the duty of passing the judge’, or ‘the burden of adducing evidence’. It obliges the party on whom the burden rests to adduce sufficient evidence for the issue to go before the tribunal of fact. … (underline added)

In both civil and criminal proceedings, the general rule is that the party bearing the persuasive burden will also bear the evidential burden.

Where a party has an evidential burden, it may be satisfied either by adducing evidence himself, or by eliciting evidence from the witnesses of his adversary.  It is wrong to speak of the persuasive burden shifting during the course of the trial, but writers sometimes speak of the evidential burden shifting during the course of a trial as evidence is led.”

22.It is a burden of adducing sufficient evidence and is not an ultimate burden of proof: Phipson on Evidence, 18^th ed, §6-02.  The applicant cannot just raise an issue without adducing evidence.

23.The Tribunal has conducted a hearing with oral evidence and there were findings of facts.  It took the view that the evidence all pointed one way (§37).  It gave additional reasons (ie not the only reasons) to support the Determination (§38).  It considered the approved plans from 1950 to 1968.  It noted that the submission card index had no submission of plans between 1953 and 1968.  It considered the effect of the missing RCC and Drainage Plans as a matter of fact (§§41-43, 47).  It had no difficulty in identifying what had been unauthorised or approved works above the original roof level from the approved plans (§§52 & 53).  It found that the 1968 Approved Plans did not show approval of the existing upper roof (§§53 & 54).

24.Reading §38 of the Determination in context, even though the Tribunal did not refer to the authorities in paragraphs 18-19 above, it was clear that the Tribunal had in fact regarded the primary burden of proof as on the BA.  Having considered the matters summarized in the preceding paragraph, when none of the approved plans showed approval of the Structures, the Tribunal could not be faulted for saying that “in such circumstances” the burden was on the applicant to show that it had authorisation for the works.   Plainly, §38 of the Determination merely placed an evidential burden on the applicant.  Ground 1 fails.

Ground 2: missing RCC and drainage plans

25.Before the Tribunal, the applicant put forward the possibility that (i) the missing RCC and Drainage Plans might have shown the approval of the existing upper roof; and (ii) the BA could have consented to the existing upper roof before 1959 because the approval of plans was not necessary at that time. The Tribunal found against the applicant and held that the missing RCC and Drainage Plans would not have shown the existing upper roof (§§42 & 43).

26.Ms Eu SC renews the argument, based on Lo Yin Ming.

27.The Building was built in the early 1950s.  Section 128 of the 1950 version of the Buildings Ordinance provided that:

“(3) … In cases where several alterations are made in the original design during the carrying on of work involving the submission of amended plans, the Building Authority may require the submission of a complete set of new plans shewing the building as completed. In the case of minor alterations or repairs the Building Authority may dispense with the submission of plans by an authorized architect. (emphasis added)

…

(9) The Building Authority shall within 28 days of the submission of the said plans notify the person submitting the same or his authorized architect or other representative if they are not in accordance with the requirements of this Ordinance. If the Building Authority does not within such period so notify, the building shown on such plans may be commenced in the same manner as if the approval of the Building Authority had been received: Provided that in the event of such plans having been withdrawn for alteration during such period of 28 days by the person submitting the same or his architect or other representative the said period shall be calculated from the date of their final submission.” (emphasis added)

28.In Lo Yin Ming, section 9 of the 1955 version of the Buildings Ordinance applied, which provided that consent of the BA was required to commence or carry out building works. 

29.Under the 1959 amendments to the Buildings Ordinance (“the 1959 amendments”), the BA’s consent had to be obtained prior to commencement of building works: Lo Yin Ming, §17.

30.In other words, until 1959, the BA’s consent for commencement of building works was not restricted to those shown in the approved plans: Lo Yin Ming, §§14-16, 28-29.  This would apply to “minor alterations” under the 1950 version.

31.Under the 1959 version, the BA’s powers to approve the commencement of building works were subject to more stringent restrictions and it had no powers to approve the commencement of works in the absence of any approved plans.  However, under the 1955 version of the Buildings Ordinance, the powers of the BA were not subject to this restriction: Lo Yin Ming, at §28.

32.Lam J (as he then was) held that:

“29.  Therefore generally speaking, although I agree that the approved plans are the major reference to be used by the Building Authority for the enforcement of the provisions, where the construction works of the building were approved under the Buildings Ordinance 1955, provided that there is evidence to show that the relevant construction works were carried out at the same time as the building was erected, and that when the Building Authority inspected the building, it should have noticed the occupation permit which was already in existence, the Appeal Tribunal should take into account whether the issuance of the occupation permit by the Building Authority amounted to approving the construction works by conduct, and accordingly consider whether the construction works cannot be deemed to have been erected in contravention of the provisions of the Buildings Ordinance.” (underline added)

33.In the present case, the 1950 and 1952 RCC and Drainage Plans were made before 1955.  The existing upper roof was there before 1968.  Ms Eu SC submits that if the missing plans had included the existing upper roof and no notice had been received within 28 days of submission of that there was contravention of the Ordinance, the plans as regards the existing upper roof should have been deemed approved.

34.Ms Eu SC submits that the present case is even stronger than Lo Yin Ming as the latter did not have plans showing the balconies whereas the 1968 Approved Plans showed the existing upper roof.  She makes clear that the applicant’s case is not that the 1968 Approved Plans had approved the existing upper roof.  Rather, its case is that the 1968 Approved Plans showed that the BA must have known about and granted prior approval of the existing upper roof.

35.Ms Eu SC queries why the works regarding the existing upper roof could not be regarded as minor alternation under the 1950 version and why it would have made the Building a different building (§42).

36.The aerial photograph taken on 17 January 1961 was said by the BA to show an “additional structure”.  Ms Eu SC submits that this could be the existing upper roof which was approved prior to 1959 without the need for plansand theBA could not disprove such possibility.  Ms Eu SC submits that the Tribunal erred in law in failing to take into account these considerations in making the Determination. 

37.With respect to Ms Eu SC, the facts in Lo Yin Ming are distinguishable.  The building in question was constructed between 1958 and 1959.  The BA issued an occupation permit on 6 April 1959 after it conducted examination on the building.  It was the applicant’s case that the balconies that formed the subject matter of the demolition orders were constructed at the same time as the building.  The BA had inspected the building at various stages of the construction and noticed the construction of the balconies.  Upon completion, the BA inspected the building again when the balconies were already in existence.  Although the balconies were not shown in the approved plans, the BA issued an occupation permit.  The Appeal Tribunal did not analyze the applicant’s arguments in detail.

38.Further, the applicants there had produced technical evidence to show that the structures were built at the same time as the building was constructed.  Moreover, evidence from former occupants showed that the structures were already in existence when they moved in, shortly after issuance of the occupation permit (§7 of Lo Yin Ming).

39.Lam J held that the applicants had strong reasons to rely on the occupation permit as representation by the BA that the commencement of building works of the balconies was with the approval of the BA and therefore should not be deemed unlawfully constructed structures.  Lam J held that the Appeal Tribunal had erred in law in dismissing the applicants’ appeal without first determining whether the balconies in question were constructed at the same time as the building.

40.In the present case, the Tribunal did deal with the evidence that it had.  Experts on both sides directly addressed the issue of the missing plans.  The Tribunal draws the conclusion that the RCC and Drainage Plans could only be showing details of the technical particulars of the approved building (§42).  The applicant’s counsel also expressly accepted before the Tribunal that there was no positive evidence to suggest that the existing upper roof was approved.  He said, “And so we will never know.  We can’t put a positive case because we don’t know.” The Tribunal also dealt with the aerial photos (§50).  In the end, the Tribunal found there to be no evidence of approval and the evidence did not support the applicant’s proposition (§50).

41.As a specialist tribunal, the Tribunal was entitled to draw these conclusions.  It was also entitled to prefer the evidence of one expert to another and draw the inference as it did (§43). These conclusions were on top of its finding that all the evidence pointed one way (§37).

42.There is no challenge to the Tribunal’s finding as being Wednesbury unreasonable. The Determination was arrived at on the evidence and not on the burden of proof.  Applying the principles in paragraphs 14-16 above, it is not open to the applicant to challenge findings of facts by relying on legal propositions in Lo Yin Ming.  Ground 2 is unsustainable.

Ground 3: presumption of regularity

43.An applicant is not permitted to raise in a judicial review an argument that was not run before the Tribunal.  If it had been raised there, it may be that the applicant would have conducted its appeal differently.  A decision on the point can have significant consequences on the practice and powers of the BA or the Tribunal.  The BA or the Tribunal was not aware of the argument and did not have the opportunity of considering or making a response to it.  See Sky Ace Enterprises Ltd at §19, G Lam J. 

44.On this principle alone, Ground 3 should be dismissed.

45.If I am wrong, I have considered the merits of Ground 3.

46.All acts are presumed to have been done regularly and properly performed.  Formal requisites to judicial, official or public acts, which are good in substance, will be presumed.  The presumption has a wide application in different areas of the law.  See Halsbury’s Laws of Hong Kong, Vol 12(1), §175.115. 

47.The presumption of regularity comes into play when there is no evidence either way whether a public authority or official had taken into account the correct considerations in reaching an administrative decision.  In such a case the decider is entitled to the benefit of the presumption of regularity and is not obliged to adduce evidence to establish that only the correct factors were take into account.  In consequence, in the absence of contrary evidence the application for judicial review will fail. See Bhagwandeen v The Attorney General of Trinidad and Tobago[2004] 5 LRC 501, at §22.

48.However, the presumption is not a firm conclusion of law; it is dealing with the burden of proof.  If it can be shown by the local authority that, contrary to what one assumes, they did not perform their duty, or there is some other explanation as to what has happened, then the presumption would yield. Calder Gravel Ltd v Kirklees MBC (1990) 60 P&CR AA 322, at p 339.

49.I agree with Mr Yu SC that the presumption of regularity can arise where the public authority has acted or made a decision and the presumption is relied on to show that it had acted lawfully and in accordance with its duties.  It will not arise when the issue is whether the public authority had acted or made a decision, in the present case, to approve the Structures.

50.Ms Eu SC submits that under this presumption, the BA is presumed to have acted lawfully and in accordance with its duties under statute.  It can be presumed that the BA would not have allowed the existing upper roof to be occupied and used for 44 years (from 1968 up to the issue of the Order) unless the BA had inspected it and/or was satisfied that it was structurally safe.  Since the BA has no power to give retrospective approval to the existing upper roof, it is reasonable to infer that the consent to its erection was given before the erection.

51.Ms Eu SC makes clear that she does not rely on the presumption other than as a legal principle connected to the burden of proof.  Since the burden of rebutting the presumption is on the BA but it fails to discharge it, the existing upper roof is deemed to have been approved: Lo Yin Ming at §27.

52.Still further, she submits that the BA has failed to take enforcement action for 44 years.  In a different context, in AG v Fairfax Ltd [1997] HKLRD 243, at p 246D, the Privy Council held that 40 years of use contrary to a restrictive covenant in a government lease was “the clearest possible case of abandonment” by the government.

53.Applying the principles in paragraphs 46-49, where, for example, the BA had approved the Drainage Plans, then in the absence of proof due to passage of time, it can be presumed that BA had acted lawfully and in accordance with its duties.  However, the applicant cannot say that because he has had unauthorized structures for over 44 years, it can invoke the presumption. This is especially so where the Tribunal has expressly made findings of fact that the Structures did not form part of the approved works under the approved plans from 1950 to 1968.

54.Applying §17 of Lo Yin Ming, since the 1968 Approved Plans were approved after the 1959 amendments, any consent granted by the BA to the commencement of the building works would necessarily be confined to those shown in the 1968 Approved Plans and not otherwise. 

55.The upper roof shown on the 1968 Approved Plans showed nothing more than an identification of a structure already there (§§38 & 49).  Hence even if the presumption applied, it would have been rebutted by such evidence.

56.This case is distinguishable from Calder Gravel where there was a resolution (though not a formal grant) approving the application for planning permission.  For 40 years, all concerned proceeded on the basis that planning permission existed.  The presumption was applied to the effect that there was a written grant of the permission (at p 339).  Here, the applicant has failed to adduce evidence showing that it was likely that the BA had made a decision consenting to the Structures.

57.The principles on abandonment relied on by Ms Eu SC relate to the extinguishment of private law rights which a judicial review is not concerned with: eg a Government right of way under a Government lease, as in Sky Ace; or the right of the Government to enforce a restrictive covenant in AG v Fairfax.  Enforcement of the statute by a public body can hardly be barred by “abandonment” of rights.

58.Ground 3 is unsustainable.

59.None of the other grounds in Form 86 are relied on.  They are not independent from the 3 Grounds anyway.

Conclusion

60.None of the Grounds are sustainable.  Viewing the Determination in context, the Tribunal has only put an evidential burden on the applicant.  The applicant has only raised a possibility of the missing RCC and Drainage Plans containing approval of the Structures.  The Tribunal has, however, on the evidence come to an express finding that there was no such approval.  The presumption of regularity was not raised before the Tribunal and ought to be disregarded. Even if the presumption applied, there was evidence in rebuttal.  There is no illegality shown in respect of the Determination.

Conclusion

61.The application for judicial review is dismissed.  On a nisi basis, costs should be borne by the applicant.

62.There shall be summary assessment of costs on 22 September 2016 at 4 pm on the papers without an attendance. The BA shall file and serve its statement of costs by 12 September 2016.  The applicant shall file and serve its grounds in opposition by 19 September 2016.

63.I thank counsel for their able assistance.

Ms Audrey Eu SC and Mr Anthony Ismail, instructed by Kao, Lee & Yip for the applicant

Mr Benjamin Yu SC and Mr Jin Pao, instructed by the Department of Justice, for the Building Authority