Yip Kin Ming and Another v. Appeal Tribunal (Buildings Ordinance)

HCAL 918/2017

[2018] HKCFI 1507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 918 OF 2017

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J U D G M E N T

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INTRODUCTION

1.This is an application for leave to apply for judicial review of the decision of the Appeal Tribunal (Buildings) (“Tribunal”) dated 21 September 2017 (“Decision”) dismissing the Applicants’ appeal against a building order (“the 2015 Order”) made by the Building Authority (“BA”) on 28 April 2015 requiring the Applicants to demolish certain unauthorized building structure on and over the terrace and garden at the rear of the premises (the “Property”) known as House 2 (including the Roof, the Garden, the Yard and 2 Car Ports appurtenant thereto), Sussex Lodge, 831 Clear Water Bay Road, Sai Kung, New Territories, on the Remaining Portion of Lot No 343 in DD 224 (the “Lot”).

2.The principal issue which arises for determination is whether the 2015 Order requires the Applicants to demolish not only the part of the unauthorized building structure upon the Lot owned by them but also that part of the unauthorized building structure constructed by them upon the adjoining Government land.

BACKGROUND FACTS

3.The following brief summary of the background facts should suffice for the purpose of disposing of the present leave application.

4.The Applicants are, and at all material times were, the registered owners of the Property.

5.On 5 May 2014, the Buildings Department (“BD”) received a complaint that unauthorized building works were being carried out at the Property.  Subsequent inspection of the Property by the BD’s consultant on 7 and 30 May 2014 revealed that an unauthorised building structure on and over the terrace and garden of the Property was under construction.  An advisory letter was sent by the BD to the owner/occupier of the Property after each inspection, but construction of the unauthorised building structure continued.

6.The BD received a repeated complaint about the unauthorized building works at the Property on 5 June 2014, and carried out a further inspection on 12 June 2014.  The BD sent another advisory letter to the Applicants on 23 June 2014, but to no avail.  Eventually, on 15 July 2014, the BA issued a building order (“the 2014 Order”) to the Applicants requiring them to demolish the unauthorised building structure on and over the terrace and garden of the Property under Section 24(1) of the Buildings Ordinance, Cap 123 (“the Ordinance”).  In the 2014 Order, the unauthorised building works were described as follows:-

“(i) A structure on and over the terrace and garden at the rear of the premises; and

(ii) A structure on another structure under item (i).

(The locations of the building works described above are shown hatched-black on the plan annexed hereto, for the purpose of identification only.)”

7.The hatched-black area on the two plans annexed to the 2014 Order (the “2014 Ground Floor Plan” and “2014 First Floor Plan” respectively) showed the position of the unauthorised building structure, stopping at the boundary of the Lot.  It seems clear that under the 2014 Order, the Applicants were required only to demolish the unauthorised building structure within the boundary of the Lot, although the BD was aware at that time that part of the unauthorised building structure under construction appeared to have extended also to the adjoining Government land.

8.On 6 August 2014, the Applicants lodged an appeal against the 2014 Order to the Tribunal.  In that appeal, the Applicants alleged, inter alia, that “[t]he subject structures are not in existence”.  In view of this allegation, the BD inspected the Property again on 4 and 31 December 2014, and found that construction of the unauthorised building structure had been completed.

9.Due to the completion of the unauthorised building structure, the BA considered that it was no longer appropriate to refer to it as two separate items of building works as in the 2014 Order. Accordingly, the BA issued a further building order (ie the 2015 Order) on 28 April 2015 superseding the 2014 Order.  In the 2015 Order, the unauthorised building works were described as follows:-

“(i) Structure(s) on and over the terrace and garden at the rear of the premises.

(The locations of the building works described above are shown hatched-black on the plan annexed hereto, for the purpose of identification only.)”

10.In the plan attached to the 2015 Order (“the 2015 Ground Floor Plan”), the lot boundary line is omitted.  It would also appear, from a comparison of the 2015 Ground Floor Plan with the 2014 Ground Floor Plan, that the hatched-black area on the 2015 Ground Floor Plan extends beyond the boundary of the Lot to the adjoining Government land.

11.On 14 May 2015, the Applicants lodged another appeal (“the Appeal”) against the 2015 Order to the Tribunal.  A number of grounds were raised by the Applicants in their Amended Grounds of Appeal dated August 2016.  Only the first ground is relevant for the present purpose.  It reads as follows:-

“The [2015 Order] extended the scope of the subject matter of the [2014 Order] to include the Government lot as part of the subject matter of the Order, for which the Building Authority had no power to make the Order against the Appellants, rendering the same invalid.”

12.The Tribunal held a preliminary hearing to consider the Appeal on 5 May 2017, and gave a written decision on 21 September 2017 (“the Written Decision”) dismissing the Appeal.  The Tribunal dealt with the Applicants’ aforesaid ground of appeal at paragraphs 8 to 10 of the Written Decision, as follows:-

[8] It is noted that the Subject UBWs as depicted on the plan annexed to the Order were partly situate on the Property and partly on government land outside the Property. Counsel for the Appellants sought to argue that as there was no provision in the Buildings Ordinance permitting severance of the Order, the entire Order should be invalid.

[9] In our view, this argument is too technical to hold water. Even the ambit of the Subject UBWs as depicted on the plan annexed to the Order was wider than it should be, this should not invalidate the Order. The Order clearly states that the location of the Subject UBWs identified on such plan is “for the purpose of identification only”. Given that the Appellants accepted that they occupied that part of the Subject UBWs on government land, there is no ambiguity and difficulty for the Appellants to identify the Subject UBWs on the Property for the purposes of complying with the Order.

[10] Further the responsibility to take appropriate and effective steps and measures to comply with the terms of the Order falls on the Appellants. In our view, there is no practical difficulty to comply with the terms of the Order with respect to the Subject UBWs on the Property. Having executed and occupied the Subject UBWs on the Property and adjoining government land, the Appellants must assume such responsibility for the Subject UBWs on the Property and cannot now claim that they should not be obliged to rectify the Subject UBWs on the Property because the Order covers the Subject UBWs on adjoining government land as well. Accordingly this ground of appeal must fail.

13.On 20 November 2017, the Applicants made the present application for leave to apply for judicial review of the Decision, naming the Tribunal and BA as the Putative Respondent and Putative Interested Party respectively.

14.Four intended grounds of judicial review have been raised on behalf of the Applicants, namely:-

(1)  failure on the part of the Tribunal to give any or any adequate reasons for the Decision;

(2)  irrationality;

(3)  ultra vires, in that the BA has no power to order the Applicants in their capacity as owners of their private property to demolish structures on the adjoining Government land; and

(4)  ultra vires, in that the Tribunal has no power to sever the 2015 Order and hold a part of the order to be valid and disregard the part which is invalid.

15.This court considered that input from the BA would be of assistance for a proper consideration of the leave application. Hence, directions were given that the papers in this application were to be served on the Tribunal and BA, and leave was granted to them to file evidence and appear at the oral hearing of the leave application.

16.As is customary in this type of application, the Tribunal did not appear at the hearing of the leave application on 27 June 2018.  The BA, as Putative Interested Party, appeared at the hearing to resist the Applicants’ application for leave to apply for judicial review.

GROUND 1: FAILURE ON THE PART OF THE TRIBUNAL TO GIVE ANY OR ANY ADEQUATE REASONS FOR THE DECISION

17.The first question which arises for consideration is the true meaning and effect of the 2015 Order, in particular whether it requires the Applicants to demolish not only the part of the unauthorized building structure upon the Lot but also that part of the unauthorized building structure upon the adjoining Government land.  The answer to this question depends upon the true construction of the 2015 Order.

18.By paragraph 3 of the 2015 Order, the Applicants are required to, inter alia, “demolish the said building works described under items (i) above”.  The reference to “items (i)” here is a reference to the “Structure(s) on and over the terrace and garden at the rear of the premises” as stated in paragraph 1 of the 2015 Order (see paragraph 11 above).  In this regard, it is significant to note that the expression “premises” is defined at the beginning of the 2015 Order to mean the Property.  It is accordingly clear that the 2015 Order requires the Applicants to demolish only the part of the unauthorized building structure upon, or falling within the boundary of, the Lot, but not that part of the unauthorized building structure upon the adjoining Government land.  It is true that the hatched-black area on the 2015 Ground Floor Plan appears to extend beyond the boundary of the Lot to the adjoining Government land.  However, it is expressly stated in paragraph 1 of the 2015 Order that “[t]he locations of the building works described above are shown hatched-black on the plan annexed hereto, for the purpose of identification only” [emphasis added].  Hence, what is depicted on the 2015 Order Ground Floor Plan should not be regarded as defining the scope of the 2015 Order.

19.If there was any confusion about the scope of the 2015 Order, it was put beyond doubt by Government Counsel for the BA at the preliminary hearing before the Tribunal that the BA did not intend, by the 2015 Order, to require the Applicants to demolish the part of the unauthorized building structure upon the adjoining Government land (see pages 14 to 15 of the transcript of the hearing, as well as paragraph 24 and 25 of the Skeleton Submissions for the BA dated 21 April 2017 placed before the Tribunal).

20.As appears from paragraph 9 of the Written Decision quoted in paragraph 12 above, the Tribunal accepted the BA’s submission in respect of the true meaning and effect of the 2015 Order, stating that “there is no ambiguity and difficulty for the Appellants to identify the Subject UBWs on the Property for the purposes of complying with the Order” [emphasis added].

21.There is, however, a slight confusion when one comes to paragraph 10 of the Written Decision, where the Tribunal stated that “… the Order covers the Subject UBWs on adjoining government land as well”.  This may suggest that the Tribunal considered that the 2015 Order covered also the part of the unauthorized building structuring upon the adjoining Government land, contrary to what was stated in paragraph 9 of the Written Decision.  However, paragraph 10 must be read in its proper context.  Immediately before the words quoted above, the Tribunal stated as follows -

“In our view, there is no practical difficulty to comply with the terms of the Order with respect to the Subject UBWs on the Property. Having executed and occupied the Subject UBWs on the Property and adjoining government land, the Appellants must assume such responsibility for the Subject UBWs on the Property and cannot now claim that they should not be obliged to rectify the Subject UBWs on the Property because the Order covers the Subject UBWs on adjoining government land as well.”

22.It seems to me to be clear that the Tribunal was emphasising that the Applicants should have no practical difficulty in complying with the terms of the 2015 Order with respect to the “Subject UBWs on the Property”, and they must assume responsibility for “the Subject UBWs on the Property”.  The last sentence quoted above should, I believe, properly be understood as meaning that the Applicants cannot claim that they should not be obliged to rectify the Subject UBWs on the Property “even if” (instead of “because”) the 2015 Order covers the Subject UBWs on the adjoining Government land as well.

23.In any event, I consider that a fair and reasonable reading of the Written Decision as a whole, in the context of the BA’s submission to the Tribunal, should lead to the conclusion that the Tribunal found or accepted that the 2015 Order only required the Applicants to demolish the part of the unauthorized building structure upon the Lot but not that part of the unauthorized building structure upon the adjoining Government land.

24.For the above reasons, although I believe that paragraph 10 of the Written Decision could have been better or more clearly expressed, I do not consider that the Tribunal failed to give any or any adequate reasons for the Decision.

GROUNDS 2, 3 AND 4: IRRATIONALITY AND ULTRA VIRES

25.Having reached the conclusion that the 2015 Order only requires the Applicants to demolish that part of the unauthorized building structure upon the Lot, there would be no basis to contend that the Decision is irrational.

26.The argument that the BA has no power to make a building order which requires the Applicants to demolish structures constructed upon the adjoining Government land also falls away as a result of the above conclusion regarding the true meaning and effect of the 2015 Order.  I should mention that Ms Tessa Chan for the BA has submitted that the BA has, in any event, power to require the Applicants to demolish the part of the unauthorized building structure upon the adjoining Government land under Section 24(2A) of the Ordinance, which states as follows:-

“Where the building or building works referred to in subsection (2)(a) is or are –

(a) connected to land or premises (in this section referred to as other land or premises) other than the land or premises on which the building has been erected or on which the building works have been or are being carried out; and

(b) occupied or used by the owner or occupier of that other land or premises,

subsection (2)(a) shall not apply and in such a case, an order made under subsection (1) in respect of the building or building works shall be served on the owner of that other land or premises.”

27.I consider Ms Chan’s submission to be correct, but I do not have to reach a final view on this point because it does not strictly arise for determination.

28.The last complaint by the Applicants that the Tribunal has no power to sever the 2015 Order also does not arise in view of the conclusion reached regarding the true meaning and effect of the 2015 Order.  In any event, under Section 50(2) of the Ordinance, the Tribunal, in determining an appeal, has wide powers to make an order confirming, varying or reversing the decision that is appealed against or substituting therefor such other decision or make such other order as it thinks fit.  I do not therefore accept the Applicants’ submission that the Tribunal has no power to “sever” the 2015 Order as they contend.

29.In all, the intended application for judicial review has no reasonable prospect of success.

DISPOSITION

30.For the foregoing reasons, the application for leave to apply for judicial review is dismissed.

31.On the question of costs, notwithstanding the usual or prima facie rule that there be no order as to costs in a leave application, I consider that the Applicants ought to pay the BA’s costs in this instance, because (i) the BA has filed evidence and attended the hearing upon the court’s invitation, (ii) the BA’s evidence and submissions have been of substantial assistance to the court in determining whether leave to apply for judicial review should be granted, and (iii) the Applicants have had, effectively, a determination on the merits of their intended application for judicial review.  The BA’s costs, to be paid by the Applicants, are to be taxed if not agreed.

Mr Geoffrey P Chang, instructed by Partrick Mak & Tse, for the 1^st and 2^nd Applicants

The Putative Respondent was absent

Ms Tessa Chan, GC, instructed by Department of Justice, for the Putative Interested Party