Blendoran Ltd v. Appeal Tribunal (Buildings)

CACV 196 /2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 196 OF 2016

(ON APPEAL FROM HCAL NO 25 OF 2015)

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BETWEEN

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J U D G M E N T

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Hon Cheung JA:

1.I agree with the judgment of Kwan JA.

Hon Kwan JA:

2.This appeal is brought by Blendoran Limited, the applicant in an application for judicial review against the determination of the Appeal Tribunal (Buildings) (“the Tribunal”) made on 20 November 2014 (“the Determination”).  By the Determination, the Tribunal dismissed the applicant’s appeal against the decision of the Building Authority (“the BA”) to issue a demolition order dated 1 March 2012 in respect of unauthorised building works (“UBWs” or “the Structures”).  On 5 September 2016, Au-Yeung J handed down the judgment dismissing the application for judicial review (“the Judgment”).  This is the appeal against the Judgment.

The background facts

3.I take the background facts as set out in the Judgment at §§2 to 9, adopting the nomenclature in the Judgment:

“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.”

The Determination

4.The applicant issued its notice of appeal to the Tribunal and served a statement of particulars.  By the time the appeal was heard before the Tribunal[1], the statement of particulars was amended three times. Eventually, six grounds of appeal were raised, as summarised in §12 of the Determination.  The Tribunal held against the applicant on each of the grounds of appeal.  The application for judicial review against the Determination was brought only in respect of the Tribunal’s holdings for this ground of appeal, which reads as follows:

“the [BA] has failed to prove that the structures on the roof referred to in the Order were not structures that the [BA] had approved on or before 1968 or replacements of such structures or, at the very least, a reasonable doubt exists that they were approved on or before 1968 or are replacements of works shown on approved plans and such doubt should be resolved in [the applicant’s] favour. Alternatively, the existing or new works shown on the approved plans justify not ordering the demolition of the said structures.”

5.The Tribunal dealt with this ground of appeal in §§36 to 55 of the Determination.  In rejecting this ground, the Tribunal held in §55 that “the structures above roof level, save as shown on the approved plans as identified in paragraph 53 above [namely, the stairhood, R. C. water tank and chimney stacks and the lift machine room and small adjacent drying room], are unauthorised”.  This is a question of fact, the conclusion of which was reached on the basis of the following findings of fact, as summarised by Mr Yu, SC[2] for the BA:

(1)  the documentary evidence in relation to the approval of plans effectively points all one way and is sufficient to demonstrate in itself that there are significant unauthorised building works in the Property (§37);

(2)  there was no probative evidence to support the existence of the Structures [the existing upper roof with other works under and on top of it] prior to the issue of the domestic permit for the Building on 3 March 1953 (§50);

(3)  the aerial photographs taken in 1961 and 1963 showed an additional structure on the roof but it was nothing like as extensive as it now is (§50)[3];

(4)  the 1968 Approved Plans showed clearly the works for which approval was being sought and was obtained.  The UBWs in issue do not form part of what these plans show was approved.  The approval given by the BA in 1968 was for the lift machine room and drying room on the roof.  The 1968 Approved Plans did not indicate approval given to anything else (§§38, 50, 54); and

(5)  the roof plan annexed to the Deed of Mutual Covenant signed by the applicant on 18 September 2001 did not show the additional structure on the roof (§§8, 51).

6.These further findings of fact made by the Tribunal are also of note:

(1)  the missing RCC and Drainage Plans received in 1950 and 1952 would not have shown an existing upper roof level, which was then approved.  As for the competing testimony of the expert witness of the BA (Mr Chu Wai Yiu) and that of the applicant (Mr Robin Sinclair Howes), the Tribunal preferred the evidence of Mr Chu, which is consistent with the documentary evidence (§§39 to 43); and

(2)  there were no approved drawings for works above roof level between 1953 and 1968.  The submission card index shows no submission of plans relating to the Building in this period.  Both experts accepted that the submission of plans would have been recorded in the submission card index had this occurred (§47).

The application for judicial review

7.In an application for judicial review, the court will not substitute its own view of the facts with those of the tribunal to whom the legislature has entrusted the fact-finding power, except where it is obvious that the finding of the tribunal is perverse (R v Hillingdon London Borough Council ex p Puhlhofer [1986] 1 AC 484 at 518E).

8.The judge hearing the application for judicial review against a determination of the Tribunal does not sit as an appeal court. It does not evaluate the strengths and weakness of the evidence.  The assessment of the evidence and the weighing of relevant considerations are matters for the Tribunal, which is a specialist professional body.  If the determination of the Tribunal is correct in law, it is only on the basis of Wednesbury unreasonableness that the court may interfere with the Tribunal’s determination (Building Authority v Appeal Tribunal (Buildings) & Estoree Limited, HCAL 147/2002, 25 July 2003, Hartmann J, at §58).

9.The judge has borne firmly in mind the above well-established principles, see the Judgment at §§14 to 16.

10.In light of the above constraints, the applicant did not seek to challenge the Tribunal’s finding of fact as Wednesbury unreasonable.  It sought to set aside the finding on the basis that the Tribunal had made errors in law.

11.As stated in §12 of the Judgment, the applicant argued these three errors in law in the court below:

(1)  The Tribunal had wrongly placed the legal burden of proof on the applicant to establish that the Structures were authorised on a balance of probabilities (“the burden of proof issue”).

(2)  In view of the presumption of regularity (the maxim of omnia praesumuntur rite esse acta), the Tribunal erred in holding that the existing upper roof was erected in contravention of the Ordinance (“the presumption of regularity issue”).

(3)  The Tribunal failed to attach appropriate significance to the missing RCC and Drainage Plans in light of the relevant law before the amendments were made in the Buildings (Amendment) Ordinance 1959[4], as discussed in Lo Yin Ming v Appeal Tribunal (Buildings) [2011] 3 HKLRD 586 (“the RCC and Drainage Plans issue”).

12.The judge held against the applicant on each of the grounds and dismissed the application with costs to the BA.

This appeal

13.Essentially, the same grounds relied on in the court below were argued on appeal.  The ten grounds of appeal in the notice of appeal could be grouped under the three errors of law advanced before the judge.  On behalf of the applicant, Ms Eu, SC[5] raised some new arguments for the first time that were not raised in the Tribunal, or before the judge, or even in the notice of appeal.  We heard those new arguments de bene esse.

14.Ms Eu’s main focus on appeal was the burden of proof issue.  The contention that the Tribunal had wrongly placed the legal burden of proof on the applicant permeated her submissions and was made the root cause of the various errors in law as argued by her, in that the erroneous approach had dictated the way in which the Tribunal looked at the evidence.  It was argued that the resolution of this case turns on the burden of proof.  The presumption of regularity was tied to the burden of proof; it was invoked in answer to the error of placing the burden of proof on the applicant to show that the Structures were authorised or in some way consented to by the BA.  And as the BA had failed to discharge the burden of rebutting the presumption of regularity, the Structures are deemed to have been approved.  Reliance was also placed on the maxim of omnia praesumuntur contra spoliatorem in that the BA, which had the burden of proof, had failed to rebut the presumption in the maxim in respect of the RCC and Drainage Plans which were destroyed.

The burden of proof issue

15.It is common ground that the legal burden of proof was on the BA to establish that the Structures were unauthorised before it could issue a demolition order.  Ms Eu repeated her argument before the judge that the Tribunal had wrongly placed the legal burden on the applicant instead, to establish that the Structures were authorised.

16.The relevant part of the Determination is §38 which reads as follows:

“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.” (with italics and underlining added as per the applicant’s submission)

17.In support of her argument, Ms Eu made these points:

(1)  The party bearing the legal burden of proof (in this instance, the BA) also bears an associated evidential burden and is obliged to adduce sufficient evidence to prove an issue in the case to the required standard of proof, citing Phipson on Evidence (18^th ed) at §§6-02 and 6-03.  The legal burden does not shift.

(2)  The Tribunal was chaired by a Senior Counsel who is deemed to know the law on evidence.  However, the Determination did not expressly and unequivocally state the legal burden of proof was on the BA to prove on a balance of probabilities that the Structures were unauthorised, or how the BA had discharged that burden, or that merely an evidential burden was placed on the applicant.  The words italicised and underlined in §38 are to the contrary.

(3)  The Tribunal was wrong to say “in such circumstances”[6] the burden was on the applicant to show that it had authorisation for the building works.  If what was meant was an evidential burden, the evidential burden does not require the applicant to establish anything as a matter of proof.  The applicant is entitled to remain silent and put the BA to proof and rely on all legal principles of evidence.  The BA would have to discharge the legal burden of proof with sufficient and unequivocal evidence on a balance of probabilities even if the applicant chose to remain silent and not adduce any evidence.  Otherwise, this would be reversing the legal burden of proof.  The Tribunal must allow the appeal if the evidence adduced by the BA is insufficient or equivocal or is rejected.

(4)  The judge has misdirected herself in §24 of the Judgment in stating that “reading §38 of the Determination in context”, it was clear that the Tribunal had in fact regarded the primary burden of proof as on the BA and that “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”.  §38 of the Determination had expressly identified the “circumstances” as “where we have approved plans not showing approval of the works complained of”, and they were not the circumstances as summarised in §23 of the Judgment.

(5)  The Tribunal was wrong to hold in §37 that “the evidence effectively points all one way”.  The burden was on the BA to prove that the Structures were not authorised.  It was for the BA to prove the negative.  The reality was that there was no evidence either way, so the burden of the BA was not discharged.

(6)  At least two of the 1968 Approved Plans[7] did show the existing upper roof[8], that part of the existing upper roof directly abuts the new lift shaft with a curb built on it as part of the waterproofing detail, and that the existing upper roof is “integral to” or “constructionally involved with” the proposed building works[9].  Hence, the legal burden remains on the BA to show that the existing upper roof shown on these two of approved plans were never approved.

(7)  The RCC and Drainage Plans, which were missing, were evidence which could point either way (and not all one way) because these plans might have shown there was approval of the existing upper roof.  As the burden of proof was on the BA to establish that the Structures were not authorised, it had not succeeded in proving this because of the missing plans, as submitted by the applicant to the Tribunal[10].

(8)  The BA, on whom the legal burden of proof lies, has failed to dispel the possibility of prior approval of the Structures with sufficient evidence in that:

(i)  The BA has not explained when and how the RCC and Drainage Plans came to be destroyed.

(ii)  The BA has not identified the structure shown in the 1961 aerial photographs or stated when it was built.  If the structure was built before the Building (Amendment) Ordinance 1959 came into effect on 1 January 1960, it did not have to be shown on any approved plan and the BA could have consented to it by conduct, citing Lo Yin Ming.

(iii)  The memo from the Chief Building Surveyor to the Superintendent Crown Lands and Survey dated 21 May 1951 referred to plans approved on “30.6.50 – since lapsed” and “Nothing has been done”.  The original block plan for the Building dated 4 May 1950 was approved on 14 June 1950 (“the 1950 Approved Plans”).

(iv)  The second paragraph of the manuscript entry in the 24 February 1953 Buildings Department file referred to the building covenant having “expired on 21.12.52” and that it was considered the building covenant was fulfilled, even though the block of flats was built after the covenant expired.  This must mean that the building covenant was extended.

(v)  If the plans approved on 30 June 1950 had “lapsed”, the 1950 Approved Plans would also have lapsed.  This raises the real possibility that the “approved plans” in the first paragraph of the 24 February 1953 Buildings Department file may have referred to amended plans (including missing plans) and not the 1950 Approved Plans as found by the Tribunal[11].  By section 128(11) of the Buildings Ordinance 1950, it was provided that “it shall not be lawful … to commence any building works which have not been commenced within three months of the date of the approval of the plans without obtaining the consent of the Building Authority” and “the Building Authority … before giving such consent may require amended plans to be submitted to him for approval if he considers it necessary for the purpose of complying with the provisions of the Ordinance.”  Any possible amendment plans which may be missing should not be ignored.

18.The contention about the burden of proof must be put in context.  I agree with Mr Yu that it is apparent on a fair reading of the Determination (§37 in particular), and from the use of the word “additionally” at the start of the first sentence in §38 that the findings of the Tribunal were not based on who had the burden of proof.  The judge had noted in §42 of the Judgment that the Determination was arrived at on the evidence and not on the burden of proof.  That the BA would have to establish that the Structures were not authorised does not mean inferences may not properly be drawn by the Tribunal in support of BA’s case, albeit a negative case, and it was far removed from a situation that there was no evidence either way.  As stated by Tang PJ in Lui Fai Yang v Chui Kin Man (2012) 15 HKCFAR 803 at §16, what is a proper inference to draw depends on the circumstances of the particular case, and not on who has the burden of proof.  In a judicial review, the court does not substitute its own view on findings made by the fact-finding tribunal, and will not disturb factual findings except on limited grounds.  As I have mentioned earlier, the applicant did not seek to challenge the findings of fact of the Tribunal as Wednesbury unreasonable.

19.I have summarised earlier the findings of fact made by the Tribunal and the evidential bases for the findings, especially that the Tribunal took the view the evidence all pointed one way.  This is not the kind of exceptional situation where the tribunal of fact cannot reasonably make a finding one way or other on a disputed issue and may only decide the case on the basis who has the burden of proof (Phipson on Evidence, §6-07).  The burden of proof was just an additional point, and not the only reason why, the Tribunal held against the applicant.  To focus on the burden of proof issue without paying any or any sufficient regard to the factual findings and the cogency of the evidence to support those findings is to look at the matter back to front.  Even if the Tribunal had erred on who had the legal burden of proof, and I do not think it had erred, this cannot be an error of consequence in the particular circumstances here.

20.In any event, the judge was correct in holding in §24 of the Judgment that the Tribunal was referring to the evidential burden and not the legal burden in §38 of the Determination.  This is clear from a proper reading of §38.  That is why the Tribunal stated that the burden of proof was on the applicant “in such circumstances”, the circumstances being “where we have approved plans not showing approval of the works complained of”. Those circumstances include the fact that the Tribunal had been provided with the approved plans from 1950 and 1968, and the fact that the Tribunal found that the 1968 Approved Plans “showed clearly the works for which approval was being sought and was obtained” and that the Structures “do not form part of what these plans show was approved”.  The Tribunal was clearly referring to a burden arising only by reason of certain facts already proved, which is an evidential burden.  As for the mention of the failure of the applicant “to discharge that burden on the balance [of] probabilities” at the end of §38, I agree with Mr Yu this does not necessarily suggest that the Tribunal did not have an evidential burden in mind, as no clear formulae have been laid down with regard to the standard of proof required for the discharge of an evidential burden (Cross and Tapper on Evidence (12^th ed), p 151).

21.The contention that the applicant is entitled to remain silent and put the BA to proof ignores the Tribunal’s finding in §37 that the evidence effectively points all one way and is sufficient to demonstrate in itself that there are significant unauthorised building works in the Property.  The Tribunal had clearly considered that the BA had adduced sufficient evidence, such that it was incumbent on the applicant to adduce evidence “to show the works were authorised or in some way consented to”.

22.The applicant’s criticism of the second sentence in §24 of the Judgment that the matters summarised in “the preceding paragraph” (§23) went beyond what was stated in §38 of the Determination as the “circumstances” is of little moment.

23.As for two of the 1968 Approved Plans showing the existing upper roof[12] and the evidence of the applicant’s expert witness Mr Howes that “he believed the structure with walls and the upper roof would have been approved by [the BA] or at least [the BA] must have known about it and effectively tolerated it, because the upper roof was shown as part of the existing building in the relevant plans, when approval for the lift and drying room was sought in 1968”[13], the Tribunal had considered such evidence, as well as other evidence[14], and concluded that “the evidence does not support [the applicant’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”, as “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 … nothing more than the identification of a structure already there” and “the Buildings Department records should have recorded plans submitted and approved, had they been, but do not, and we have no such plans.”[15]

24.The proposition advocated by Mr Howes was rejected by the Tribunal, having considered all relevant evidence before it and a finding to the contrary was made.  The dispute was not resolved by who had the burden of proof.  There is no error of law and no basis to interfere with the finding of a specialist professional tribunal on judicial review.  I do not agree with Ms Eu there is no specialist knowledge involved.  The finding of fact was made in the context of the practice of the Buildings Department in approving plans submitted by architects.

25.It is entirely speculative that the RCC and Drainage Plans might have shown approval for the existing upper roof.  This issue was addressed by the Tribunal and it came to the view that the missing plans would not have shown approval for the UBWs[16].  Its reasoning was that “the reinforced cement concrete details and drainage details could only sensibly be showing the detail of the respective technical particulars for the approved building”, “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”, and “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.”[17]

26.Once again, the disputed issue was not resolved by having regard to who would have the burden of proof.  And the Tribunal had drawn on its specialist knowledge and experience of technical particulars in the missing plans and what would be required in respect of plans had approval been sought for the existing upper roof.  No error of law is made out and hence no basis to interfere with the finding of the specialist tribunal.

27.Lastly, the points made by Ms Eu as to absence of evidence on when and how the RCC and Drainage Plans were destroyed and when the structure in the 1961 aerial photographs was built, and the possibility of amendment plans that may be missing were not raised in the Tribunal, in Form 86, at the hearing before the judge, or even in the notice of appeal.  Mr Yu objected to this belated attempt to re-open questions of fact.  I consider Mr Yu’s objections well founded.  It would not be right to allow the applicant to challenge the Tribunal’s finding of fact[18] that there was no record of any approved building plans of a changed development in the 24 February 1953 Buildings Department file, when the possibility of amendment plans or missing amendment plans was never put to Mr Chu in cross-examination before the Tribunal, not to mention that this possibility is excluded by the fact that there was no record of submission of any such amendment plans in the submission card index of the Buildings Department between 1950 and 1953.

The presumption of regularity issue

28.The applicant argued that the Tribunal had erred in law in holding that the evidence does not support the applicant’s case the Structures were approved by the BA in that the Tribunal had failed to take into account a relevant consideration being the presumption of regularity.  This was a new argument raised for the first time in the judicial review[19].  The judge dismissed this ground for judicial review on the principle that an applicant is not permitted to raise in a judicial review an argument not run before the Tribunal.  The BA or the Tribunal was not aware of this argument and did not have the opportunity of considering it or making a response to it.  If it had been raised in the Tribunal, it may be that the proceedings there would have been conducted differently[20].  The judge cited Sky Ace Enterprises Ltd v Appeal Tribunal (Buildings) & Building Authority, HCAL 157/2014, 13 June 2016 at §19, G Lam J.

29.I agree with the judge that the applicant should not be permitted to raise this new argument in the judicial review as a matter of principle.  Ms Eu sought to distinguish Sky Ace Enterprises on the basis that the court in that case was concerned with a private law issue which the respondent (the BA) contended was not within the “scope of the function” of the Tribunal to adjudicate, whereas the presumption of regularity sought to be raised here relates to the principles of the law of evidence and must fall within the scope of the function of the Tribunal to consider.  I do not think that is a relevant distinction.  What matters is the principle that should be applied in respect of new arguments sought to be raised for the first time in judicial review, and the correct principle is that applied by the judge as stated above.  I do not accept that neither the BA nor the Tribunal could be prejudiced by the applicant raising the presumption of regularity for the first time in the judicial review.

30.Ms Eu submitted that the presumption of regularity arose in answer to the erroneous finding in §38 of the Determination that the applicant has failed to discharge the burden to show the works were authorised or in some way consented on the balance of probabilities.  Even if the presumption was invoked in answer to the finding in §38, the fact remains this is an available argument that could have been raised before the Tribunal in support of the applicant’s case.

31.If I were wrong about the dismissal of this ground on the basis it had not been raised in the Tribunal, I go on to consider the merits of the applicant’s arguments.

32.The judge correctly stated the law regarding the presumption in §§46 to 48 of the Judgment and no issue was taken by Ms Eu to these statements:

“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 taken 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 322, at p 339.”

33.Ms Eu took issue with §49 of the Judgment in which the judge said this:

“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.”

34.Ms Eu submitted the above statements were wrong in law.  She contended that the presumption may be invoked by which the BA would be presumed, in the absence of proof to the contrary, to have acted or made a decision to approve the Structures, which have admittedly existed at least by 1961 and definitely by 1968.  She relied on these passages in the judgment of Browne-Wilkinson VC in Calder Gravel Ltd v Kirklees MBC at 338 to 339 to advance the proposition that the presumption of regularity may be invoked where there was long-term enjoyment of a right which could only have come into existence by virtue of some legal act:

“Therefore, in my judgment, the outcome of this case does turn on the burden of proof. The plaintiff is seeking a declaration that there is a planning permission. Since they are coming to the court for relief, the burden of proof is obviously basically upon them. But in certain cases the law raises a presumption. The presumption is normally referred to by its latin tag omnia praesumuntur rite esse acta. … The presumption is that when there has been a long-term enjoyment of a right which can only have come into existence by virtue of a grant or some other legal act, then the law presumes, in the absence of proof to the contrary, that there was a lawful origin. … Given the long enjoyment of a right of way, then the court presumed the existence of the right to use that right of way. I am not for a moment suggesting that the technicalities and indeed the legal consequences applicable to lost modern grant in the law of easements are applicable to the present case; they are not. The legal basis though is the same, namely a presumption from long use and long enjoyment.

The same presumption of regularity can arise where the validity of an act done by a public authority depends on the existence of a state of facts which cannot, with the passage of time, be proved. The presumption is that the statutory authority has acted lawfully and in accordance with its duty. …”

35.Ms Eu also relied on the decision of the Court of Appeal of New South Wales in Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48, which she submitted was almost on all fours with the present case.  One of the arguments on appeal was that Walfertan did not discharge its burden of proving that the tannery had development approval.  The primary judge made a finding that the presumption of regularity applied and held that the tannery did have development approval.  The appeal court rejected the argument that Walfertan was not entitled to call in aid the presumption.  These passages in the judgment of McColl JA were particularly relied on by Ms Eu:

“113. The question whether development consent has been given is one of fact that is capable of proof by evidence of express consent by the responsible authority (or a duly authorised delegate) or by conduct evidencing consent: Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568 (at 576-577) per Windeyer J; Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139; (1999) 130 LGERA 52 (at [38] per Mason P (Sheller JA agreeing). The latter method of proof invokes the presumption of regularity.

114. The presumption of regularity has been described as both a “rebuttable presumption of law” (Cross on Evidence, LexisNexis Butterworths, at [1175]) and “a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs” (Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 (at [52]) per Hodgson JA (Ipp JA and Davies AJA agreeing)), whose “natural home … is public law”: Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 (at 164) per McHugh JA.

115. The presumption of regularity has also been described as one which “arises from the ordinary course of business”, being “a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act”: McLean Bros & Rigg Ltd v Grice [1906] HCA 1; (1906) 4 CLR 835 (at 850) per Griffith CJ (Barton and O’Connor JJ agreeing), citing Knox County v Ninth National Bank 147 US 91 (1893). In Minister for Natural Resources v NSW Aboriginal Land Council (at 164) McHugh JA explained its operation in the public law context as follows:

“Where a public official or authority purports to exercise a power or to do an act in the course of his duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.”

116. In deciding whether the presumption of regularity is rebutted, the inference from the ordinary course of human affairs carries some weight which may vary according to the proved circumstances: Hill v Woollahra Municipal Council (at [52]). In this respect, in my view, Windeyer J’s remarks in Brickworks Ltd v Warringah Corporation remain cogent:

“The giving or refusing of a consent, as required by the Ordinance, was an important discretion entrusted to the Council as the ‘responsible authority’. It is not to be assumed that the Council and its officers neglected their duties or discharged them in a perfunctory manner.”

…

118. The presumption of regularity was considered capable of applying to the issue whether development consent had been given, or its validity, in Baiada and Ashfield Municipal Council v Armstrong [2002] NSWCA 269; (2002) 122 LGERA 105. Indeed, Powell JA, who dissented in Baiada, held (at [97]-[117]) that the presumption could be invoked to demonstrate development consent had been given. …”

36.Ms Eu submitted it is clear from the above extract, in particular §118, that the presumption may be prayed in aid to the issue of proving whether the BA had acted or made a decision to approve the Structures, contrary to the judge’s holding in §49 of the Judgment.  Applying the presumption, the burden was on the BA to prove to the contrary that it did not approve the Structures.  If the court should be against her submission on the burden of proof issue, and hold that the Tribunal had ruled there was merely an evidential burden on the applicant to prove that the Structures were authorised, she would argue that this evidential burden had been discharged by applying the presumption of regularity.

37.I agree with Mr Yu the presumption of regularity does not assist the applicant for a number of reasons.

38.First, the presumption comes into play where there is no evidence to prove a particular issue either way and the resolution of the issue turns on the burden of proof, see Bhagwandeen v The Attorney General of Trinidad and Tobago at §22 mentioned earlier.  This was the situation in Calder Gravel Ltd v Kirklees MBC, in which “apart from any presumption of law, on the facts as they have been proved before [the court], [the judge was] quite unable to hold that the plaintiff, on the normal test of balance of probabilities, has proved that there was a written grant of planning permission in 1946” (at 337).  The judge had declined to infer, as a necessary inference, that because in 1946 and for nearly 40 years thereafter everyone proceeded on the basis there was a written permission that there was a written grant (at 337).  Contrariwise, he was equally unable to hold that there certainly was not a document, even on the balance of probabilities (at 338).  Hence, the outcome of the case, as stated in the passage at 338 quoted above, would turn on the burden of proof.

39.For the reasons given earlier in respect of the burden of proof issue, the present case is not a situation in which there was no evidence either way to prove that the Structures were unauthorised.  The Tribunal was able to make findings of fact on the evidence that the Structures did not form part of the approved works under the approved plans from 1950 to 1968.  It was not necessary to resolve the disputed issue by having regard to who had the burden of proof.  The presumption has no application here.

40.Second, the extracts in Calder Gravel Ltd v Kirklees MBC and Darley Australia Pty Ltd v Walfertan Processors Pty Ltd relied on by Ms Eu must be read in context.  As quoted in Darley at §114, the presumption of regularity is “associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs”.  Its application to a particular situation (where there is no evidence on a disputed issue either way) is fact specific, and depends on whether there are other facts on which a reasonable inference may be drawn by invoking the presumption.  This is demonstrated by the authorities cited to us in which the presumption was applied.

41.In Calder Gravel Ltd v Kirklees MBC, there was “no doubt that an application for [planning] permission was made in 1946”, and “equally no doubt that a resolution was passed by the district council, as the appropriate planning authority, approving the application”, and “no doubt that for nearly 40 years thereafter everybody concerned – landowners, developers and planning authorities – proceeded on the basis that there was outline permission relating to the land.” (at 323)  The full procedure leading to the due approval of the application by the bodies who were required to approve it or to be consulted on it was observed, what was missing was a “document conveying that decision to anybody outside” (at 330).  It was necessary for the plaintiff to prove there was a document prepared and sent to the applicants within two months of the application pursuant to the council resolution in June 1946 granting planning permission (at 336).  It was entirely reasonable in the circumstances that the presumption should be applied.  As the council had resolved to grant the planning permission, it ought to be assumed that the council did perform its statutory duty to notify its decision to the applicants within time, unless and until shown to the contrary.

42.Moreover, for nearly 40 years, all parties had proceeded on the basis that there was a valid permission granted in 1946, and further planning permissions had been granted and dealt with on that footing (at 339).

43.Hence, what was said at 338 about long-term enjoyment of a right as the basis to invoke the presumption must be understood in the light of the particular circumstances of that case.  In the present case, the mere fact that the Structures were in existence for over 44 years could not be regarded as long-term enjoyment of any right.  Even assuming the absence of evidence either way to prove whether there was approval of the Structures, given the present circumstances, it would not be reasonable to draw the inference that there was approval by invoking the presumption.

44.In Darley Australia Pty Ltd v Walfertan Processors Pty Ltd, there were again circumstances that made it appropriate for the inference to be drawn that there was development approval by invoking the presumption of regularity, see §§111 and 119.  There was evidence of four subsequent development consents which “clearly relied on the existing situation at the time of the applications being made”, this being “a reference … to each development consent having been given on the premise that the tannery itself had development consent”.  Hence, it should not be assumed that the council and its officer “so neglected their duties as to have granted four development consents and apparently given building approval for the construction of the tannery building without there having been development consent for the operation of the tannery itself” (§120).

45.The broad proposition in the quotation at §115 in Darley (where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act) must not be applied without regard to the particular fact situation that gave rise to the application of the presumption.  Likewise, the statement in §118 in Darley (that the presumption of regularity was considered capable of applying to the issue whether development consent had been given) must be understood in a similar vein, as is demonstrated by the authorities cited in §118 in support of that statement – Baiada v Waste Recycling and Processing Service of NSW and Ashfield Municipal Council v Armstrong.

46.In Baiada, the appellants bore the onus of proof of the absence of development consent.  They established at trial that no consent had been granted by the council to the respondent which permitted and controlled the use of the site generally as a rubbish depot and that finding was unchallenged on appeal.  Nevertheless, the trial judge held the appellants had failed to persuade him that no consent had been granted by the council to itself (§2).  The appellants challenged the trial judge’s refusal to infer that the council omitted to grant itself consent and submitted that the judge erred in applying the presumption of regularity to defeat inferences otherwise arising from the absence in the council’s records of reference to any development consent (§§44 and 49).  In allowing the appeal, the majority of the Court of Appeal of New South Wales held that the inference of lack of consent can safely be drawn in the circumstances (§60).  Powell JA, who was in the minority, held to the contrary, taking the view that the earlier and later actions on the part of the council provided evidence of the council’s having given consent (§§116 and 117).

47.The presumption of regularity was applied in Ashfield Municipal Council v Armstrong to assist in proving that development consent was given before the local environment plan came into force in 1985.  There was evidence that consent was granted in 1953 and that was to be treated as a development consent for the purposes of the relevant legislation.  The consent granted in 1953 had stood for many years and was strong evidence that the council legally and regularly consented to the use of the premises as a residential building (§40).  So the facts raised a presumption of continuance and lawfulness (§48).

48.Thus, in all the cases cited to us in which the presumption of regularity was applied – Calder Gravel Ltd v Kirklees MBC, Darley, Baiada (minority judgment) and Ashfield – there was cogent evidence from which the inference might properly be drawn that planning or development consent was given.  That is far removed from the present situation.  Viewed in that light, I do not think there is any valid criticism of §49 of the Judgment.

49.Third, even assuming the presumption were to be applied, on the findings of the Tribunal, it would have been rebutted in the circumstances, as noted in §55 of the Judgment.  The upper roof shown on the 1968 Approved Plans showed nothing more than an identification of a structure already there (§49 of the Determination).  There is no difficulty in identifying what had 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 (§53 of the Determination).  As submitted by Mr Yu, the argument on the presumption of regularity is academic and ignores the express findings of the Tribunal.

The RCC and Drainage Plans issue

50.An issue was raised before the Tribunal whether the missing RCC and Drainage Plans in 1950 and 1952 might have shown an upper roof level (in addition to the stairhood), which was then approved.  Until the Buildings (Amendment) Ordinance 1959 came into operation on 1 January 1960, the BA’s consent for commencement of building works was not restricted to those shown in the approved plans (Lo Yin Ming, §§16, 28 and 29).  The Tribunal found against the applicant and held that the missing plans “could only sensibly be showing the detail of the respective technical particulars for the approved building” (the Determination, §42).

51.The argument that the missing plans might have included the existing upper roof was renewed in the judicial renew.  It was submitted that if the missing plans had included the existing upper roof and no notice of the BA had been received by the person submitting the plans within 28 days of the submission pursuant to section 128(9) of the 1950 version of the Buildings Ordinance, the plans as regards the existing upper roof should have been deemed approved[21].  The 1968 Approved Plans showed the existing upper roof.  The BA could not have approved the lift installations in 1968 to be attached to and supported by the existing upper roof if the latter had not been approved earlier[22]. Further, it was queried why the works regarding the existing upper roof could not be regarded as “minor alterations” such that the BA might dispense with the submission of plans by an authorised architect pursuant to section 128(3) of the 1950 version of the Buildings Ordinance[23].

52.The judge rejected the applicant’s submissions, holding that the facts in Lo Yin Ming are distinguishable in that the applicants in that case had strong reason to rely on the occupation permit as representation by the BA that the commencement of building works of the balconies (the subject of the demolition orders) was with the approval of the BA, and the Tribunal there had erred in law in dismissing the appeal without first determining whether the balconies were constructed at the same time as the building[24]. In the present case, the Tribunal had drawn the conclusion on the evidence that the missing plans could only be showing details of the technical particulars of the approved building (the Determination, §42) and the evidence did not support the proposition that the BA had somehow consented to the Structures (the Determination, §50).  The Tribunal was entitled to draw those conclusions as a specialist tribunal and it was not open to the applicant to challenge the findings of fact by contending that the Tribunal had failed to attach appropriate significance to the missing plans[25].

53.The arguments ran before the judge were renewed on appeal.  Further, the applicant contended that the evidence from BA’s expert on the probable contents of the missing plans was speculative and insufficient to rebut the presumption in the maxim omnia praesumuntur contra spoliatorem. The presumption would apply in these instances.  Firstly, “where there is insoluble doubt between any two possible versions or assessments, when the tribunal of fact is pursuing the factual issues” (Seager v Copydex Ltd (No 2) [1969] 1 WLR 809 at 815A to B, per Winn LJ).  Secondly, the principle may also be applied where the court is entitled to expect that the party in question has retained the relevant documents (Documentary Evidence in Hong Kong by Charles Hollander (1^st ed) at §11-044).  Here, the BA can be expected to retain the missing files and adverse inferences as to their contents should be drawn against the BA, with the result that the BA cannot rely on the missing files and/or destroyed documents to negate approval for the existing upper roof.

54.I agree with the judge that Lo Yin Ming is distinguishable for the reason as stated in the Judgment.  It is a non sequitur to suggest that because the BA’s consent for commencement of building works was not restricted to those shown in the approved plans prior to the Buildings (Amendment) Ordinance 1959, the BA could have authorised the commencement of building works by conduct without the same being shown on any approved plan.  As stated by Lam J (as he then was) in Lo Yin Ming at §29, whether the BA authorised building works at the time of the construction of the building depends on the existence of the evidence.  Here, the Tribunal has found 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” (the Determination, §50).  I am unable to discern any error of law to warrant interference with the Tribunal’s finding on the probable contents of the missing plans.

55.The arguments on the presumption of omnia praesumuntur contra spoliatorem were not raised in the Tribunal, in Form 86, before the judge, or in the notice of appeal.  I do not think the applicant should be permitted to raise them in the judicial review, let alone on appeal, as the proceedings in the Tribunal might well have been conducted differently if this point, which was available to the applicant, had been raised in the Tribunal.  It could not be said that the BA would not have suffered any prejudice by the applicant raising this argument for the first time in the judicial review.

56.In any event, no suggestion has ever been made that the destruction of the missing plans was deliberate or wrongful, and that would make a difference to the way in which the presumption in the maxim was to be applied, see Hongkong and Shanghai Banking Corporation v Chan Yiu Wah [1988]1 HKLR 457 at 464B to F, 468D to I, 500I and 510G to 512C.  In the situation of an innocent destruction, which may have a tortious basis, the maxim would be applied in a much less rigorous manner.  At this lower level, there arises not so much a presumption (a presumption from deliberate destruction may be virtually irrebuttable as all is presumed against the spoliator) but an inference which transfers the evidential burden of proof upon the very matter rendered uncertain by the destruction.

57.There is no suggestion that the destruction of the missing files was tortious or wrongful or that there was prospective litigation when the documents were destroyed.  The circumstances here are not sufficiently obvious for an adverse inference to be drawn against the BA (Documentary Evidence in Hong Kong by Charles Hollander at §11-044).  Even if such an evidential burden were to be placed on the BA regarding the probable contents of the missing plans, that burden was discharged by the express findings of the Tribunal in §42 of the Determination.

Conclusion and order

58.I would dismiss the applicant’s appeal for the above reasons, and make an order nisi that the applicant is to pay the BA’s costs of this appeal, with a certificate for two counsel.

Hon McWalters JA:

59.I agree with the judgment of Kwan JA.

Hon Cheung JA:

60.Accordingly, there will be an order in terms of paragraph 58 above.

Ms Audrey Eu SC and Mr Anthony Ismail, instructed by Kao, Lee & Yip, for the Applicant (Appellant)

Mr Benjamin Yu SC and Mr Jin Pao, instructed by the Department of Justice, for the Interested Party (Respondent)