Building Authority v. Appeal Tribunal (Buildings)

HCAL 124/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 124 OF 2016

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J U D G M E N T

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Introduction

1.This is an application by the Building Authority (“BA”) for judicial review of a decision of the Appeal Tribunal (Buildings) (“Tribunal”).  The BA had disapproved general building plans submitted for a redevelopment on Lot No 2087 in DD 6 at No 51 Pun Chun Yuen Road, Taipo, New Territories (“subject lot”), pursuant to s 16(1)(j) of the Buildings Ordinance (Cap 123).  The Tribunal allowed the appeal brought by the landowner, Mr Leung Ting Che (“Mr Leung”), and remitted the case to the BA for further consideration. 

2.The BA contends that the Tribunal’s decision is vitiated by legal errors.  Mr Leung who has appeared by counsel as Interested Party in these proceedings opposes the BA’s application.

Background

3.The subject lot was granted by the Government under New Grant No 12549 (Conditions of Exchange) dated 9 May 1991 to one Tse Lin For, Mr Leung’s predecessor‑in‑title, for non‑industrial purposes.  It appears that a number of old lots in that location were surrendered in exchange for the subject lot.  Mr Leung acquired the subject lot pursuant to an assignment dated 14 September 2009.  The subject lot is land‑locked and the underlying concern on the part of the BA is whether there is means of access to the main roads supported by right of way.  Special Condition 25 of the Grant is notable:

“The Government cannot guarantee any right‑of‑way to the lot and the Grantee will accordingly have to make his own arrangements for acquiring such right‑of‑way.”

4.The location of the subject lot can be seen from the plan attached to this judgment.  The subject lot can be accessed from Kam Shan Road (a public road) via Pun Chun Yuen Road and Shek Lin Road.  Pun Chun Yuen Road is situated on both unleased Government land and private land, namely, (1) Lot No 1270 RP, (2) Lot No 699 RP, (3) Lot No 1180, (4) Lot No 1254 and (5) Lot No 1237, all of which are owned by Cavanah Company Limited (“Cavanah”).  Shek Lin Road is also situated on both unleased Government and private land, namely, (1) Lot No 1286 RP and (2) Lot No 694 SB RP, which are owned by Timeless Luxury Properties Limited (“Timeless”) and Cavanah respectively. 

5.The relevant history of the submission of building plans in relation to the subject lot involves three sets of submissions.  First, on 21 June 2013, Mr Leung through an authorised person submitted a set of general building plans to the BA for approval.  The plans were for a 3‑storey house redevelopment.  The plans did not show any means of access from a street to the subject lot. 

6.On 15 August 2013, the BA disapproved this submission under s 16(1)(i) of the Ordinance, stating

“Means of obtaining access from a street to the subject site, including its width, land status and right of way should be provided under B(P)R 5.”

The submission was also disapproved under s 16(1)(d) on grounds that are not relevant here. 

7.On 3 December 2013, Mr Leung through the authorised person submitted a second set of general building plans to the BA, enclosing an annotated plan showing means of obtaining public access from Wilson Trail to the subject lot.  This second submission was still found to be unacceptable and was disapproved by the BA.  Apart from the absence of an EVA (emergency vehicular access), the plans were disapproved under s 16(1)(i) in that the BA considered the following information should be included in the plans for consideration:

“Means of obtaining access from a street to the subject site, including its width, land status and right of way should be provided under B(P)R5. …”

8.On 26 June 2014, Mr Leung through the authorised person made a third submission of building plans to the BA, in which it was proposed that there would be a “vehicular and pedestrian access path” leading from Pun Chun Yuen Road to the subject lot.  Further, on 30 June 2014, in support of this set of plans, the authorised person submitted a written legal opinion (“the Opinion”) prepared by Messrs Ho & Tam, a solicitors’ firm practising in Hong Kong, to address the questions of means of access from a street, the land status of the access and right of way.  I shall refer to the contents of the Opinion below.  Annexed to the Opinion were, inter alia, statutory declarations of one Tsang Wai Chiu (“Mr Tsang”), who was a resident of No 22 Pun Chun Yuen Road, and of Mr Leung himself.

9.On 18 August 2014, the BA disapproved the third set of plans under s 16(1)(j) of the Ordinance, stating:

“… the following information should be provided for consideration:

(a) You are required to demonstrate your subject site is accessible from a street by an unfettered right‑of‑way by the production of a written documentation from the respective private lot owners.  Building (Planning) Regulation [B(P)R] 5 refers.  The legal opinion produced by Ho & Tam Solicitors is not considered as the above written documentation.  It is an opinion from the owner’s solicitor and has not considered the legal position of the other owners of the access footpath. Furthermore, the opinion has not been tested in court.  I reserve my position under B(P)R 19(3).”

Later on in the letter, the BA stated:

“You are advised to liaise with the respective private lot owners to obtain a written agreement of granting unfettered right of way to your site.”

Appeal to the Tribunal

10.Mr Leung appealed from that decision to the Tribunal on the following grounds:

(1)  The BA had required Mr Leung to produce written documentation from the respective private lot owners when there was no applicable statutory provision requiring such written documentation to be produced.

(2)  The BA had unreasonably rejected the Opinion on the grounds stated in the BA’s letter.  There was no applicable statutory provision which excluded the Opinion from being accepted as evidence of the right of way.  The Opinion had considered the legal position of the owners of the access footpath, did not need to be tested in court and had demonstrated the subject lot was accessible from a street with an unfettered right of way.

11.After the hearing of the appeal, in which oral evidence was received from 5 witnesses including Mr Leung himself, Mr Tsang and Mr Chiang Chi Man (the Chief Building Surveyor who wrote and signed the disapproval letter on behalf of the BA), the Tribunal stated in its decision (“Decision”):

“17. Given the provision of B(P)R 5 and the existence of clause 25 in the New Grant, it is only reasonable that the Respondent required particulars from the Appellant to demonstrate that the subject site is accessible from a street by an unfettered right‑of‑way. This was one of the reasons stated in both the 1^st and 2^nd disapproval.

18. On the plain reading of paragraph 7 of the 3^rd disapproval letter, it is clear that the Respondent was still seeking further particulars, only this time it was asking for a particular type of document, “a written documentation from the respective private lot owner” from the Appellant. This is “required to demonstrate [the] subject site is accessible from a street by an unfettered right‑of‑way”. The Respondent even went so far as to advise the Appellant how he should proceed to obtain this document (in paragraph 12 of the letter).

19. In the course of his evidence Mr Chiang conceded that there were many ways in which such a “right‑of‑way” could be demonstrated, eg, written confirmation from the previous owner, a village head or somebody who had the authority to do so. He stated that he could not pre‑empt as to what kind of evidence would be sufficient, it all depended on what the applicant could come up with on this issue.

20. With that concession in mind, it is obvious that the reason given by Mr Chiang in the 3^rd disapproval letter, by confining to the requirement of one particular type of document, is incomplete, incorrect and indeed unreasonable.

21. The second part of paragraph 7 plainly stated that the Legal Opinion of Ho & Tam “is not considered as the above written documentation”, ie, a written documentation from the respective private lot owner. We do not understand what Mr Chiang meant when he said in that paragraph that the opinion “has not considered the legal position of the other owners of the access footpath”. His oral evidence did not assist us any further. As submitted by Mr CHEUNG for the Appellant, we do not see why such an opinion could only be considered after it had been tested in Court. After all, this Legal Opinion was a document which the Appellant submitted in response to the earlier disapprovals under section 16(1)(i). Given the concession by Mr Chiang mentioned above, the Respondent should proceed to consider its contents in order to come to a decision substantively whether to approve the application, whether it was tested in Court or otherwise.

…

25. Given the evidence before us, we are satisfied that the reasons given by the Respondent in the 3^rd disapproval letter in rejecting the application by the Appellant were unreasonable. Both Grounds of Appeal put forward by the Appellant have been made out. We would allow the appeal on these grounds.

26. However, the matter does not stop here. In order to properly dispose of this appeal we are required to consider the consequential Order upon our decision to allow this appeal on the above‑mentioned grounds.

…

31. There are rooms for argument either way on the true interpretation of section 16(1)(j). However, in the circumstances of the case before us, we do not consider it necessary for us to decide on this issue.

32. As pointed out above, on the plain reading of the contents of the 3^rd disapproval letter, in particular paragraph 7 and paragraph 12, it is clear that the Respondent was still seeking further particulars from the Appellant on this issue of “unfettered right‑of‑way”, albeit only a particular form of documentation was being sought.

…

37. Therefore, even though the 3^rd disapproval was said to be based on section 16(1)(j), the true position, both from the contents of this letter and the evidence of Mr Chiang, was that the decision of the Respondent was made under section 16(1)(i).

38. Following the guideline provided by Lam J (as he then was) in HCAL 20/2011, we will refer the case back to the Respondent with a direction that the Respondent should re‑consider the application by the Appellant afresh, taking into account the Legal Opinion and any further particulars the Appellant may wish to submit for consideration.”

12.In other words, so far as relevant, the Tribunal held:

(1)  BA’s reason for the disapproval, insofar as the BA requested for written documentation from the private lot owners, was incorrect and unreasonable because it was not the only way in which a right of way could be demonstrated.[1]

(2)  The Opinion could be considered even without being tested in court, and the BA should have proceeded to consider the contents of the Opinion to come to a decision substantively whether to approve the plans.[2]

(3)  Other reasons given by the BA in the appeal for not accepting the Opinion as sufficient (eg it was based on an assertion on paper of continuous use of the road by Mr Tsang, and the BA had reservation whether the evidence submitted was sufficient to establish 20 years’ unfettered use) could not be considered.[3]

(4)  The reasons given by the BA for the disapproval were unreasonable.[4]

(5)  As the BA was still seeking further particulars from the applicant in the form of written documentation from the respective private lot owners, the BA’s decision was actually made under s 16(1)(i) rather than s 16(1)(j).[5]

(6)  Following the guidance given in Building Authority v Appeal Tribunal (Buildings) and Dobrowen Investment Ltd (unrep, HCAL 20/2011, 20 December 2011) at §§11–16 (see §20 below), the BA should re‑consider the application afresh, taking into account the Opinion and any further particulars Mr Leung might wish to submit.[6]

13.In the result, the Tribunal allowed the appeal and remitted the case to the BA in terms set out in §38 of the Decision quoted above.  It is as against this decision that the BA has applied for judicial review.

Grounds for judicial review

14.Three grounds have been advanced for judicial review:

(1)  The Tribunal erred in law in not holding that the Opinion did not constitute sufficient particulars and that it was right for the BA not to have been satisfied with it and to disapprove the plans under s 16(1)(j).

(2)  The Tribunal should have exercised its own discretion under s 16(1)(j) and decided that the submission of building plans should be disapproved under s 16(1)(j). 

(3)  The consequential order made by the Tribunal was pointless, and therefore irrational or unreasonable.

15.Before discussing these grounds, it is necessary to set out what the authorities suggest to be the proper approach in relation to disapproval of building plans under ss 16(1)(i) and (j).

Statutory context

16.S 16(1) of the Ordinance enumerates the grounds on which the BA may refuse to give his approval of plans of building works.  Of relevance in the present case are the grounds set out in s 16(1)(d), (i) and (j) respectively which provide as follows:

“(d) the carrying out of the building works shown thereon would contravene the provisions of this Ordinance or of any other enactment, or would contravene any approved or draft plan prepared under the Town Planning Ordinance (Cap 131)”

“(i) in his opinion, it is necessary for him to have further particulars of such plans or of the building works shown thereon or, where all the plans prescribed by regulations have not been submitted, to have one or more of the other plans prescribed by regulations, to enable him fully to consider such plans”

“(j) any further particulars or other plans delivered to him, upon his refusal, under paragraph (i), to give his approval to any plans, are not to his satisfaction”

17.Both sub‑paragraphs (i) and (j) above refer to “particulars”, which denote “items or details of information”: Fortune Key Ltd v Appeal Tribunal (Buildings) (unrep, HCAL 82/2009, 7 May 2010), §23 per Reyes J; approved in Building Authority v Appeal Tribunal (Buildings) [2013] 4 HKLRD 52 (CA), §29.  Where in a given case the BA reasonably considers it necessary for him to have certain specific information in order to consider whether or not to refuse approval on one or more of the “substantive” grounds in s 16(1) (ie grounds other than (i) and (j)), the BA may refuse approval under s 16(1)(i) if insufficient information has been supplied: Fortune Key, supra, at §§22–29.

18.It is common ground in this case that, for the purpose of considering whether the building plans should be rejected under s 16(1)(d), it is necessary for the BA to consider whether reg 5(1) of the Building (Planning) Regulations (Cap 123F) (“B(P)R”) would be contravened by the carrying out of the works involved.  B(P)R 5(1) provides:

“Every building shall be provided with means of obtaining access thereto from a street.”

19.It is also common ground that, in order to satisfy B(P)R 5, the access contemplated has to be supported by an unfettered or unrestricted right of way, and that the BA was therefore entitled to seek particulars on the second submission which included for the first time an annotated plan showing means of access from Wilson Trail and, on that basis, to reject the second submission under s 16(1)(i).[7]

20.Generally, where building plans have been disapproved by the BA under s 16(1)(i), and the applicant appeals, the proper approach for the Tribunal has been set out by Lam J (as he then was) in Dobrowen,supra, at §§11–16:[8]

“11. … In an appeal against such a decision, the BAT should allow an appeal if it is satisfied that the BA did not have any proper reason to seek the required information. If the BAT were not so satisfied, generally it is neither here nor there that the required information was supplied by the time of the hearing. The appeal should be dismissed by the BAT. The BAT should not usurp the role to the BA to go further to examine such information as if it were the primary decision maker and make a substantive decision on the approval or disapproval of the plans. Opportunity should be given to the BA to consider the information and exercise its primary discretion and power in assessing whether the plans should be approved or disapproved.

12. This flows from the nature of an appeal to the BAT. It is important to bear in mind that under Section 44(1) of the Ordinance there can only be an appeal when a person is aggrieved by a decision made by the BA. Thus, the BA is the primary decision maker and until a decision had been made by the BA on a substantive ground, a party who submitted plans for approval cannot be said to be aggrieved by a relevant decision on such ground.

13. In other words, in the context of an appeal based on an exercise of discretion under Section 16(1)(i), the BAT should not embark upon the consideration of any substantive ground unless the BA had exercised its primary discretion in respect of such ground. An appeal under Section 16(1)(i) should not be used as a platform for sidestepping the BA as the primary decision maker.

14. In view of that analysis, in most cases one would expect a developer to furnish the requested information instead of mounting an appeal to the BAT right away.

…

16. Thus, in general, in an appeal against a disapproval under Section 16(1)(i), the BAT should only consider whether the BA should have asked for the information in question and this is to be determined by reference to the necessity of having the information for the proper consideration of the application for approval.  In so saying, I must not be taken as holding that the BAT must not entertain new arguments or take account of new materials or evidence under any circumstances.  For example, in cases where the BA agreed to deal with the substantive merits in light of new information furnished, it would be appropriate for the BAT to exercise its power accordingly.  However, such power should be exercised with circumspection and due regard must be given to the role of the BA as primary decision maker.”

21.The Court of Appeal has since spoken in what appear to be more restrictive terms than paragraph 16 of the quotation above.  In Lai Siu Kin Rembert v Building Authority [2013] 4 HKLRD 74, the BA had disapproved building plans under s 16(1)(i) on the ground that the developer had failed to provide any, or sufficient, information or proof of ownership or realistic prospect of control over the proposed redevelopment site. After the BA’s disapproval, the developer had incrementally acquired an increasing number of units in the original development.  In the developer’s appeal to the Tribunal, one of the questions that arose, which the Tribunal referred to the Court of Appeal by way of case stated, was this:

“… is the Appeal Tribunal limited to considering the position at the time of the rejection of the plans or can the Appeal Tribunal consider the position as at the date of the hearing of the appeal thus taking into account any changes in the interim period?”[9]

22.The answer given by Fok JA (with whom the other two members of the Court of Appeal agreed) was this:

“101. As to Question 4, it was not in dispute that the hearing before the BAT is a de novo hearing. That must follow from the nature of the powers conferred on the BAT in BO s 50(1)(c), including the power to receive evidence and to require the attendance of a person to give evidence or produce any document. Accordingly, the answer to Question 4 must be that the BAT should be entitled to consider the position as at the date of the hearing of the appeal and thus taking into account any changes in the interim period.

102. However, this answer is qualified in the sense that the powers of the BAT on appeal may be different depending on the nature of the decision appealed from. In this regard, I would agree with the BA’s contention that, where the appeal is against a decision made under BO s 16(1)(i), the BAT can do no more than confirm, vary or reverse that particular decision of the BA or substitute its own decision on whether (and, if so, the extent to which) particulars are required. On the other hand, where the appeal is against a decision going to the exercise of discretion by the BA on different grounds under s 16(1), it may fall to the BAT to exercise that discretion afresh and this may lead to the imposition of an order under BO s 50(2) of a substantive nature: cf in this context the judgment of Au J in Ko Siu Luen v Appeal Tribunal (Buildings) [2012] 1 HKLRD 149 at §53 regarding a decision whether to issue a demolition order under BO s 24. In short, given the various ways in which a matter might come before the BAT on appeal from a decision of the BA, the dispositive powers of the BAT may be different depending on the nature of the decision appealed from.” (underlining added)

23.In other words, the Court of Appeal has confirmed that on an appeal from a disapproval by the BA of building plans under s 16(1)(i), where further particulars have been supplied in the course of the appeal, it is not the Tribunal’s function “to take the further step of deciding substantively, in the light of any further particulars subsequently provided, whether the underlying building plans should be approved or not” on substantive grounds.[10]

24.Where building plans have been disapproved by the BA under s 16(1)(i) but the applicant does not appeal, and instead proceeds to make another submission of plans with such further particulars sought by the BA as the applicant can provide, then two different scenarios may arise. 

(1)  First, the BA may consider the further particulars sufficient for him to consider the plans under the substantive grounds in question, and proceed to make a decision either to approve the plans or to refuse approval on the substantive grounds. 

(2)  Alternatively, the BA may still find the further particulars insufficient for the purpose of enabling him “fully to consider” the plans on the substantive grounds, in which case the BA may, it seems to me, disapprove the plans under s 16(1)(j), ie on the ground that the further particulars delivered to him, are “not to his satisfaction”.  This phrase in s 16(1)(j) refers, in my view, to the sufficiency of the further particulars for the purpose of enabling the BA to consider whether to disapprove the plans under one or more of the substantive grounds.

25.If the BA does decide to reject the plans under s 16(1)(j), there is nothing to prevent the applicant from making another submission of building plans with yet further particulars.  Alternatively, the applicant may decide to appeal to the Tribunal against the disapproval or, indeed, take both of these steps in parallel.

26.Where the applicant appeals to the Tribunal against the BA’s disapproval of plans under s 16(1)(j), I see no reason why the reasoning set out in Dobrowen,supra, at §§11–16 and Lai Siu Kin Rembert,supra,at §§101–102 does not apply.  In a disapproval under s 16(1)(j), all that the BA has decided is that the further particulars provided are still not sufficient for him fully to consider whether the plans should be disapproved on the substantive grounds.  As in a disapproval under s 16(1)(i), the BA — the primary decision maker — has likewise not made a decision on the substantive grounds.  It seems to me the same view with regard to s 16(1)(j) was taken by Au J in Building Authority v Appeal Tribunal (Buildings) (re: Methodist Church) [2015] 5 HKLRD 108 at §78 where he said:

“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.” (underlining added).[11]

27.Accordingly, on an appeal from a disapproval under s 16(1)(j), the primary question for the Tribunal is whether the BA was right to regard the further particulars supplied (upon the disapproval under s 16(1)(i)) as being not satisfactory, ie still not sufficient to enable the BA fully to consider whether to disapprove the building plans under the relevant substantive grounds.  Likewise, where yet further particulars have been provided by the applicant by the time of the appeal hearing, the Tribunal should not normally embark upon considering whether to approve or disapprove the plans on any substantive grounds which ex hypothesi the BA has not yet considered. 

28.I have not heard arguments as to, where the Tribunal allows an appeal from a disapproval under s 16(1)(j) on the ground that the particulars are adequate, what impact its decision would have on the BA’s decision on the plans on substantive grounds, and I would therefore not express any view on that question.

Ground 2

29.It seems to me more logical to begin with Ground 2.  As can be seen from §25 of its Decision, the Tribunal found the BA’s reasons unsatisfactory. But the appeal to the Tribunal was an appeal against the BA’s decision, not the reasons or any “advice” in the disapproval letter: see ss 44(1) and 50(2) of the Ordinance.  In this case it was for the Tribunal to say, under s 16(1)(j), whether in its own view the further particulars provided were to its satisfaction, that is to say, sufficient to enable the primary decision‑maker on the substantive ground (ie s 16(1)(d)) to come to a decision.  The Tribunal should exercise the power under s 16(1)(j), and not treat the appeal as if it were an application for judicial review by focussing on the quality of the reasons expressed by the BA in the disapproval letter: see Ko Siu Luen v Appeal Tribunal (Buildings) [2012] 1 HKLRD 149, §§53–54 per Au J.  If the Tribunal found the further particulars not to its satisfaction (albeit for reasons different from the BA’s), it should dismiss the appeal.

30.The Tribunal treated the BA’s disapproval as made under s 16(1)(i).[12] This was not one of the grounds of Mr Leung’s appeal, but even if the BA’s decision was one made under s 16(1)(i) (which in my view it was not), the Tribunal should have asked whether the BA reasonably required, and was therefore entitled to seek, further particulars in support of a right of way (even if not in a form dictated by the BA, such as written documentation from third party owners).  The Tribunal should not simply have allowed the appeal because it found the BA’s reasons unsatisfactory and remitted the case to the BA. 

31.It is not entirely clear from §§37–38 of the Decision whether the Tribunal considered the BA could legitimately require further information.  If the Tribunal had in fact concluded that the BA was entitled to seek further particulars (albeit under s 16(1)(i) as they thought), it should have dismissed the appeal: see Dobrowen, supra, at §11.  Mr Leung would then be at liberty to make another submission to the BA together with such further particulars as he wished to submit for consideration.

32.On this ground, I conclude that the Tribunal misdirected itself as to the proper approach on an appeal from the BA to the Tribunal on s 16(1)(j). The Tribunal’s decision should therefore be set aside.  It is unnecessary to deal with Ground 3.

Ground 1

33.By Ground 1, the BA contends in effect that no one acting under s 16(1)(j) could properly have regarded the Opinion as satisfactory particulars, and that the Tribunal was therefore bound to uphold the disapproval under s 16(1)(j) and dismiss the appeal.  On this basis the BA seeks an order that the matter be remitted to the Tribunal with a direction that the appeal be dismissed.

34.The Opinion states that the subject lot can be accessed from what have been called “Route 1” and “Route 2”, that is to say, respectively: (i) access from Pun Chun Yuen Road and Shek Lin Road, and (ii) access from a footpath (“the Footpath”) connecting to Pun Chun Yuen Road.

35.As to Route 1, the Opinion in essence states there is evidence that a right of way subsists over the five lots owned by Cavanah set out in §4 above, which the Route passes through, under the doctrine of lost modern grant recognised in China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342.  It is said that the doctrine applies if a claimant can show that he and his predecessors‑in‑title, if applicable have openly and peaceably exercised a right of way over his neighbour’s land for more than 20 years without interruption.  By way of evidence:

(1)  Mr Tsang who has lived in No 22 Pun Chun Yuen Road since 1993 made a statutory declaration on 18 June 2014 stating that the previous owners of the subject lot had freely made use of Cavanah’s five lots for access and egress for over 20 years without hindrance.  (This was amplified in his witness statement and oral evidence in the Tribunal proceedings.)

(2)  Mr Leung himself made a statutory declaration stating that since acquiring the subject lot he had used those five lots for access and egress without any hindrance.

(3)  The Opinion refers to the plans annexed to the New Grant in respect of the subject lot in May 1991, which show that as at that time there were already two buildings erected on the subject site and a road next to it, being the upper part of Pun Chun Yuen Road.  It is therefore said that at least from May 1991 the subject lot was occupied with access to and from Pun Chun Yuen Road.

(4)  The Opinion also states that Route 1 is the only vehicular access to and from the subject lot and that there is no obstruction of any kind such as a drop‑bar or sign or notice to restrict anyone from passing through the five lots for such access.  It is said that it is reasonable to infer that the occupants of the subject lot have been openly, peaceably and frequently using those five lots for at least 23 years since 1991 for such access.

36.As to Route 2, the Opinion acknowledges that the Footpath lies on Government land and that this Route in part passes through Lot No 1286 RP and Lot No 694 SB RP, owned by Timeless and Cavanah respectively.  It is said that there is evidence of a right of public easement over the relevant parts of those two lots arising from dedication to the public, to be inferred from long user by the public based on the principles set out by Reyes J in Kong Sau Ching v Kong Pak Yan [2004] 1 HKC 119. For this claim, the Opinion relies on the following:

(1)  The relevant land forms part of the Wilson Trail, a well‑known public hiking trail since 1996.

(2)  There is no obstruction of any kind such as a drop bar or sign or notice to restrict anyone from passing through the land.

(3)  Various Government and public services had made use of the land.  Lamp posts, electricity network, and water treatment and transfer facilities are situated along the land.  The whole Shek Lin Road is well paved by the Government.

37.On behalf of the BA, Ms Wu criticised the Opinion and the materials attached to it.  She submitted that Mr Tsang’s statutory declaration had not been tested in court and that, as he admitted to the Tribunal, he could not read the Lot Index Plan attached to his declaration; Mr Leung’s statutory declaration could only cover the period of time after his acquisition of the subject lot in 2009; Route 2 could not in any event provide vehicular access because it was in parts too narrow and contained steps.  Ms Wu submitted that the BA was entitled to ask for written documentation from Cavanah and Timeless, as the “best” and “most direct” proof, to support the alleged right of way over Routes 1 and 2.

38.No one disputes that the BA is entitled to ask for particulars of right of way over a proposed means of access.  Nor does anyone dispute that an admission by the owner of the land said to be subject to the right of way would be good evidence of the right of way.  What I have difficulty with is any suggestion that an applicant, in these circumstances, has to obtain a prior binding court declaration or a written acknowledgment from the owner of the servient tenement to prove the existence of the right of way and that, short of that, evidence such as the sworn evidence of neighbouring owners as to long and uninterrupted user cannot, as a matter of law, be regarded as satisfactory particulars for the purpose of building plans approval.  As I understand Ms Wu’s submissions, the BA does not go so far as a general proposition, but she does submit that in this case the Tribunal was bound to dismiss the particulars supplied as unsatisfactory.

39.The question of adequacy of particulars or cogency of evidence is generally a matter for the decision‑maker (the BA or the Tribunal as the case may be), not a matter of law for the court upon judicial review.  It is for the BA and, on appeal, the Tribunal to form their own view whether the particulars supplied are to their satisfaction.  There is no rule of law that the BA or the Tribunal can never be satisfied by a statutory declaration that is “untested” in a court of law; nor is there any rule that, for the BA or the Tribunal to proceed on the basis that there is a right of way, there must be a written acknowledgment by the owner of the servient tenement.  As s 14(2) of the Ordinance makes clear, the approval of building plans does not confer any title to land.  The exercise of power under s 16 of the Ordinance does not require or involve the adjudication of rights and obligations between neighbouring properties — that is the preserve of the courts.  Neither the approval of the plans by the BA or the Tribunal nor, a fortiori, their acceptance of the materials submitted as sufficient particulars to enable a decision to be made on substantive grounds, is in any way declaratory of any private law right of any person in relation to any right of way.  In China Field itself,[13] both the BA and the Tribunal had found that a right of way existed by prescription over part of the site of the proposed development (and accordingly reduced the plot ratio available for development), without any prior determination of the existence of the right of way by any court.  I appreciate that the question there was whether the development site was subject to a right of way in favour of neighbouring lots, whereas the question in the present case is whether the subject lot benefits from a right of way over other land in the vicinity, but the case nevertheless illustrates that the evidence in support of a right of way has to be qualitatively assessed.

40.In the present case there is nothing inherently improbable about the existence of the right of way.  The plans attached to the New Grant appear to suggest that there were buildings erected there before which also used Route 1 for access.  Mr Leung had also submitted the statutory declaration of Mr Tsang.  The Tribunal has in addition heard oral evidence from, inter alia, Mr Tsang.  There is no suggestion that Mr Tsang was found incredible or dishonest or that his evidence was in material respects shown to be false.  The question of the weight to be put upon it is a matter for the Tribunal.  Ms Wu said Mr Tsang admitted he could not read the lot index plan attached to his declaration, but his evidence was that the location as indicated in the map had been explained to him.  Ms Wu also relied on a confused answer in the cross‑examination of Mr Tsang that he moved to No 22 Pun Chun Yuen Road in 1996 or 1997, and submitted that his evidence could not extend back to 20 years before 2014.  The transcript shows, however, that Mr Tsang later clarified that he moved there in 1993, and lived briefly in Yat Wing Garden for two years in the late 1990s before moving back to No 22.  It is impossible for this court based on points like these to conclude that Mr Tsang’s evidence could be of no value.

41.In her submissions Ms Wu sought to justify the BA’s decision that the materials supplied were not satisfactory.  But the issue is not whether this court agrees with the BA’s decision.  To succeed on Ground 1, the BA has to show that the materials were such that no reasonable Tribunal could have found them to be “to its satisfaction” under s 16(1)(j).  In all the circumstances I am unable to accept the submission that the totality of the particulars supplied could not, as a matter of law, be sufficient.  Whether or not they were, is in my opinion a question of fact and judgment for the Tribunal.

42.In my view, on a proper consideration by the Tribunal of the appeal as remitted to it, it would be open to it to come to its own conclusion either way on whether the plans should be disapproved under s 16(1)(j).  It follows that Ground 1 is not made out and that this court should not direct the Tribunal to dismiss the appeal.

Conclusion and order

43.For the above reasons, the application for judicial review succeeds on Ground 2, but Ground 1 fails. There will be an order of certiorari for the Tribunal’s decision to be brought up to the High Court and quashed, and the matter is remitted to it for decision in the light of this judgment.

44.While the BA’s application is granted, I have rejected Ground 1 and the associated contention that the Tribunal should be directed by the court to dismiss the appeal.  A substantial part of the materials and arguments concern only Ground 1.  I would therefore, on a nisi basis, order that Mr Leung do pay 50% of the costs of the BA, to be taxed if not agreed.

Ms Teresa Wu, instructed by Department of Justice, for the Applicant

Appeal Tribunal (Buildings), the Respondent, absent

Mr Earnest W H Cheung, instructed by Ho & Tam, for the Interested Party