Charteryard Industrial Ltd v. Appeal Tribunal (Buildings)

HCAL 183/2016

[2018] HKCFI 2704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 183 OF 2016

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J U D G M E N T

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A.   INTRODUCTION

1.The applicant has been the registered owner of, among others, Shop No 6 (“Shop 6”) on the Ground Floor of Bo Fung Gardens at 1090/1094 King’s Road since January 1988.

2.This is the applicant’s judicial review against the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the Tribunal”) made on 21 July 2016, dismissing the applicant’s appeal (“the Appeal”) against the demolition order issued by the Building Authority (“the BA”).

B.   BACKGROUND

3.As mentioned, the applicant is the registered owner of Shop 6.  Shop 6 has been identified and marked in the respective plans attached to the relevant assignment (“the Assignment Plan”) and Deed of Mutual Covenant (“the DMC Plan”).

4.On the other hand, it is not disputed that Shop 6 is not identified and marked in the plan approved by the BA (“the Approved Plan”).  Instead, according to the Approved Plan, the area where Shop 6 occupies is partly a car parking space and partly on a flower box (花槽).

5.Structurally, Shop 6 consists of glass walls erected on the flower box wall with a canopy on the top projected from the wall of the building (“the Building”) of Bo Fung Gardens located behind the car parking space and the flower box.

6.Upon an inspection made in 2012, the BA was of the view that the flower box and the car parking space had been enclosed by the glazed glass windows with a ceiling (ie, the canopy) and converted into an additional shop to the Building.  The extension from the building wall was about 1.3m.  The BA therefore concluded that the said glass-wall together with the projected canopy constituted unauthorized building works (“the UBW”).  As a result, it issued a demolition order (“the DO”) dated 2 February 2013 requiring the applicant to demolish the UBW and reinstate the portion affected to the conditions as shown on the Approved Plan.

7.On 5 March 2013, the applicant appealed against the DO to the Tribunal (ie, the Appeal).  At the BA’s request, the Tribunal decided to hold a preliminary hearing to determine if no good cause had been shown for a full hearing.

8.Before the preliminary hearing, the applicant had filed various written statements and submissions[1] in support of the Appeal.  In substance, the applicant argued that:

(1)   The proper external wall of the Building should include the flower box outward facing wall.  This was particularly so as Shop 6 had been so and already identified and marked on the DMC Plan and the Assignment Plan, and was sold as such by the developer.

(2)   Hence, the glass shopfront was erected “in” the building and therefore pursuant to section 43(1) of the Buildings Ordinance (Cap 123) (“the BO”) was exempted as “building works” prescribed under section 14(1) of the BO.[2]

(3)   Further, on the same basis, the span of the canopy projection above the shopfront should be measured from this boundary line of this external wall (ie, the flower box wall), which was only found to be 500mm.  This was within the 600mm tolerance level accepted by the BA under its enforcement policy.

(4)   In the premises, the DO should not be, and was wrongly issued by the BA.

9.In response, the BA’s principal contention in the Appeal was that the external wall was that of the building behind the car parking space and flower box as identified and marked in the Approved Plan.  In particular, under the Approved Plan, the flower box was marked and identified only as a flower box.  Under the Approved Plan, there was no Shop 6.  In the premises, the glass front could not have been built “in” the building and thus not exempted from section 14(1) of the BO.  For the same reason, the canopy extension was of 1.3m and fell far outside the tolerance level accepted by the BA under its relevant policy.

10.The preliminary hearing was held on 14 January 2015, where further oral submissions were made respectively by the applicant (through professional surveyors as its representative) and the BA.  It is also common ground that at the hearing, the principal oral submissions made by the applicant’s representative were focused on whether the relevant external wall of the Building should include the flower box wall.

11.By the Decision made on 21 July 2016, the Tribunal dismissed the Appeal.  The Tribunal took the view that:

(1)   The UBW falls within the definition of “building works” under the BO (see paragraphs 8 and 13).

(2)   The applicant failed to show that there was any approval or consent regarding the UBW, that any of the exemptions under section 41(3) of the BO were applicable or that it could take advantage of any leniency policy (see paragraphs 14, 24, 27, 31).

12.Dissatisfied with the Decision, the applicant applied for leave to judicially review it.  This court granted leave on limited grounds after a hearing on 28 April 2017.

13.I will now turn to look at the grounds of judicial review.

C.   THIS JUDICIAL REVIEW

14.The applicant relies on three grounds of challenge.[3]  I will consider them in turn.

C1.    Ground 2 – The Tribunal failed to consider and determine a relevant issue: that is the correct boundary of the external wall of the building

15.Under this ground, Mr Chung for the applicant submits that the question on the correct boundary of the external wall of the Building was the principal dispute between the applicant and the BA in the Appeal and at the preliminary hearing.  As emphasized by Mr Chung, the determination of the correct boundary of the external wall, in particular, whether the flower box wall formed part of and delineated the Building’s external wall, was paramount to the applicant’s case in the Appeal.  The applicant contended that the flower box wall, as part of the Building’s external wall, formed the bearing for deciding whether the UBW was erected “in” or “on” the Building.  It also formed the basis of determining the span of the canopy projection in question as to whether such projection would fall within the tolerated range by the BA (ie, within 600mm) or the prescribed category of minor works under the Building (Minor Works) Regulation (Cap 123N) to be exempted from section 14(1) of the BO.

16.In this respect, Mr Chung also draws the court’s attention to the following parts of the transcript of the preliminary hearing.  Counsel says these demonstrate that the importance of determining the correct boundary of the external wall of the Building had been repeatedly stressed and reminded by the applicant’s representative, Mr Denys Kwan, on several occasions during the hearing:

“其實我哋睇一睇即係而家成個個案裏面嘅話，我諗個問題個核心，就喺究竟邊個係個外牆，究竟有冇突出1.3米，呢個就個重點嚟。” [p 9E-F of the transcript] (Mr Chung’s emphasis)

“我哋就咁樣，就係話我哋認為為嗰個牆，矮牆又好，高啲嘅又好，就係佢嘅物業或者係整個大廈，寶峰園當初最出嘅外圍嘅點。因而就不構成由個大廈再向外伸延1.3米。呢個好重要...” [p 14J-K of the transcript]

“...但係我哋又講咗好多次，都像話我哋對於佢講話嗰個外牆個位置，點為之個外牆，就係關鍵性嘅嗰度...大家都諗諗呢個問題。

查實我哋主要就話既然有幾樣嘢都有疑點嘅話，即係大家講個牆，究竟呢埲係咪高身牆，抑或係等高嘅矮牆呢？大家都有個疑點喺度。牆係咪由嗰度計起呢，又有個疑點喺度。當其時個政策係點，亦都係有個疑點喺度。我哋覺得既然呢個個案有疑點嘅，咁樣就唔應該話貿貿然就出一個嗰啲清拆令，一個控訴，呢樣係一個重點。

...所以我哋希望就可以提出一個全面嘅聆訊，即係要求一個全面嘅聆訊，我哋在座各方面嘅資料搜尋，或者我哋有需要搵專家嚟作證嘅時候，我哋再去安排嘅。好過喺度估…” [p 31F-M of the transcript] (Mr Chung’s emphasis)

17.However, Mr Chung says, the Tribunal did not at all deal with this fundamental issue in the Decision.  Counsel emphasizes that nowhere in the Decision has the Tribunal indicated what conclusion it had made on this fundamental question of whether the external wall included the flower box wall.

18.With respect to Mr Chung, I am unable to agree.  I will explain why.

19.As I mentioned above, in the Appeal, the applicant’s fundamental contention that the external wall of the Building included the flower box wall was premised on the arguments that Shop 6 had always been identified and marked on the Assignment Plan and DMC Plan and was sold as such.  This is particularly so, the applicant explained, as the DMC Plan and the Approved Plan were both prepared by the developer’s architect, and that the DMC Plan was dated only three weeks later than the Approved Plan.  Therefore, the flower box wall should be regarded as the external wall of the Building.

20.In other words, it is crucial to the applicant’s case that, in determining this question, the Tribunal could and should look at and rely on the Assignment Plan and the DMC Plan.

21.On the other hand, the BA’s principal reply in this respect is that there was no Shop 6 in the Approved Plan.  The “Shop 6” area was identified and marked as a car parking space and the flower box, which only had a low wall.  In the premises, the external wall of the Building was the wall of the building itself as identified and marked in the Approved Plan but did not include the wall of the flower box.

22.In the premises, in determining the location of the external wall, it is crucial to the BA’s position that the Tribunal should only look at the Approved Plan.

23.As rightly submitted by Mr Chung, these fundamental contentions formed the core of the oral submissions made before the Tribunal.  It is also obvious to me that the Tribunal was fully aware of and engaged with the parties’ said respective arguments based upon the reliance on the Approved Plan (by the BA) and the reliance on the DMC Plan (by the applicant).  For examples and in particular, Mr Leung (a member of the Tribunal) raised the following questions and observations in these aspects at the hearing (see pp 19F-I and 21F-L of the transcripts):

“梁先生：大家研究下先，上面我有啲提—我少少提問嘅啫。其實都—頭先你都自己都講咗，因為點解屋宇署特登要標個1米3出嚟，就係你講個600，都係其中一個關鍵嚟，就係係咪個突咗出嚟，米3。我相信亦都係因為喺屋宇署手上淨係睇番building plan㗎喇？

…

梁先生： 我諗其實如果畀我睇，我就有咁嘅睇法。因為如果純粹睇批則，即係72年嗰份，未—唔睇DMC plan住，即係睇批則先。佢好specifically喺嗰個位寫咗一個‘Flower Box’，花槽嚟嘅。如果佢係一個—亦都唔合理嘅，如果係一個全高嘅牆，而佢話後面係一個flower box，其實你啲花係睇唔到嘅，唔知擺嚟做乜。

Regardless後面—佢後面停車位同埋個flower box中間嗰埲牆係一個—真係一幅高身牆、矮牆定係一幅半身牆，其實唔係好關係嘅。我覺得個問題重點係嗰個係咪一個flower box呢？即係你當佢係一個flower box，而一個flower box又喺上面起嚿嘢上去，就有機會係一個僭建物嚟嘅。我諗係咁嘅睇法，應該係。

但係如果你純粹睇批則講，就好清晰，寫住係‘Flower Box’ 嘅，呢個就冇得拗。Whether嗰幅牆係幾高，呢個都係一個flower box嚟嘅啫，唔係一個外牆，唔係一個external wall。” (emphasis added)

24.In relation to these contentions, in the Decision, the Tribunal had expressly decided that, for the purpose of the Appeal, it would and should only look at the Approved Plan but not the Assignment Plan and the DMC Plan.  The relevant parts of the Decision are as follows (in particular those parts as underlined):

“A. Introduction

1. The preliminary hearing of the Appellant’s appeal was fixed before this Tribunal on 14 January 2015 pursuant to section 49 of the Buildings Ordinance (‘BO’). After hearing the submissions from both parties, this Tribunal reserved the decision and adjourned the hearing. Subsequently, this Tribunal gave further directions to both parties for supplemental submissions to address our requisitions.

2. Now we have received the parties’ supplemental submissions and taken the opportunity to thoroughly consider their respective arguments, and now we give our judgment below.

3. In the present appeal, it concerns if the structure together with its projection (shopfront and canopy) (‘UBW’) erected on Store No. 6 on Ground Floor, Bo Fung Gardens, Nos. 1090/1094 King’s Road, Hong Kong (‘the Premises’), which is subject to a removal Order (Order no. C/TB/000546/13/HK) (‘Order’) served under section 24(1) of the BO, is considered unauthorized building works, and if it does, whether there is any reason why the Order should not be made or enforced against the Appellant.

4. Under section 49 of the BO, it is provided that if the Appeal Tribunal determines that good cause has not been shown for holding a full hearing, it shall make an order dismissing the appeal but shall otherwise hold a full hearing.

B. Issues at Appeal

5. The Appellant’s arguments are set out in its Statement of Particulars dated 2 September 2013 and in the letters dated 29 September 2014, 15 June 2015 and 8 September 2015 filed by the Appellant’s authorized representatives CS Surveyors Limited.

6. The Respondent’s replies are contained in its Outline of the Respondent Representation dated 2 December 2013 and in the subsequent letters dated 20 October 2014, 14 April 2015 and 9 September 2015.

7. The Appellant’s major contentions are summarized as follows:-

(a) The Deed of Mutual Covenant (Memorial Number 920922, 31 August 1972) with the plan attached to it depict the Premises as ‘Store No. 6’. The Deed of Mutual Covenant together with the approved plans filed with the Respondent’s predecessor were prepared by the developer’s appointed architect, namely one Don Pan & Associates, and it is extrapolated that the change of the building materials of the Premises’ external wall from bricks to glasses falls within the meaning of ‘exempted works’ under section 41(3) of the BO or the relevant provisions under BO at the material times in year 1972;

(b) When the Appellant purchased the Premises on 16 January 1988, the conveyancing documentations also showed that the Premises were being described as ‘Store No. 6’. Since then, the Appellant has maintained the Premises in a good structural and safe condition. Also, the Premises do not occupy any public place, and neither has it obstructed any public or fire safety access. Accordingly, the Premises have not posed any harm or safety issue to the public;

(c) The change of the Premises’ use from car park/flower box to store is allowed under the land lease documents;

(d) The UBW has satisfied the requirements under section 39(C)(1) of the BO.

C. Discussion

8. The starting point for this Tribunal to consider is whether the UBW falls within the definition of ‘building works’ as defined in section 2 of the BO, and if it does, then unless the building works of the UBW are exempted works under section 41(3), 41(3B) and 41(3C) of the BO, approval and consent under section 14(1) of the BO are required.

9. Further, if such building works of the UBW do not have approval or consent as required by section 14 of the BO, they are unauthorized. Assuming such UBW is unauthorized, then this Tribunal has to consider any argument as to why this UBW should not be removed.

10. In the appeal, as long as the Respondent satisfies an ‘evidential burden’ to raise a prima facie case as to which regulation is contravened by the carrying out of the building works in question, the burden of invoking the exemptions rests also on the Appellant: see the Determinations in BA case No. 36-1993, BA case No. 43-1997 and BA Case No. 184-2006.

11. In Sheldrake v Director of Public Prosecutions [2005] 1 AC 264 at 289 (House of Lords), Lord Bingham of Cornhill explained what is meant by ‘evidential burden’ as follows:-

‘An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case, an issue as to the matter in question fit for consideration by the tribunal of fact...’

12. The evidential burden can be defined as the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue: see page 124 of Cross and Tapper on Evidence 12th Edition).

13. From the Respondent’s inspection report, the Tribunal is satisfied that the UBW (i.e. shopfront with a solid canopy adding on the flower box and parking space) falls squarely within the definition of ‘building works’ and the evidential burden has been satisfied by the Respondent. Indeed, the Appellant has no dispute as to the existence of UBW but the argument, as stated in paragraph 3 above, is that the UBW satisfies the BO requirements and also land lease conditions.

14. It follows that, to be successful at the appeal, the Appellant is therefore required to prove either approval and consent was sought undersection 14(1), the exemptions under section 41(3) applies or it can take advantage of any leniency policy. If evidence can be adduced by the Appellant to establish a prima facie case to prove either way, then this Tribunal should then order a full hearing. Otherwise, the appeal should be dismissed forthwith.

15. The Appellant has produced a copy of the plans attached to the Deed of Mutual Covenant in support of its contention on the legality of the UBW.

16. The question is whether this Tribunal is entitled to rely on and consider these plans for the present appeal purpose, and if so, what weight should it carry, at this preliminary hearing and at the full hearing.

17. In our view, the nature of the land lease (and the properties’ title documents such as the Assignment and the Deed of Mutual Covenant plans etc) and the BO serve different purposes.

18. In this regard, the Tribunal takes note of (and agrees to) former Secretary of Development Mrs. Carrie Lam’s reply to questions posted by Hon Lee Wing-tat on 1 February 2012 in the Legislative Council proceedings which spells out these two regimes:

a) A Land Lease is a contract signed by the Government, through the Lands Department (‘LD’) in the capacity of a landlord, with a lessee (commonly known as ‘Land Owner’) for the use of a piece of land. Different Land Leases are executed at different times having regard to different land conditions.

b) BO aims to regulate the planning, design and construction of buildings and associated works on private land, and for this purpose, to prescribe building design and construction standards regarding building structure, fire safety and sanitation.

c) The statutory vetting and approval mechanism under the BO is independent of the land lease administration mechanism. If the applications comply with the relevant requirements under the BO, the Buildings Department (‘BD’) is obliged to approve the plans and give its consent in writing for the commencement of works.

d) Where the building plans approved by the BD deviate from the lease conditions, the Land Owner may apply to the LD for modification of lease conditions or seek necessary approval. The LD will consider the application in the capacity of a landlord and may decide to approve or reject it.

19. In other words, BO concerns the safety, health, environmental issues and the compliance of statutory requirements of a building and it is executed under a stringent approval and consent process operated by BD (i.e. the Respondent). Any plan attached to the Deed of Mutual Covenant is regarded as title document on one’s ownership of a landed property, but is not tantamount to and taken as compliance with the requirements under BO as such. There is no such statutory basis to suggest or imply otherwise. Simply such plan has little bearing insofar as the BO is concerned.

20. Hence, for the present appeal purpose, this Tribunal will consider mainly those approved plans issued under BO to assess the legality of the UBW.

21. From the evidence, the last (latest) approved plan on ground floor of Bo Fung Gardens in the possession and record of the Respondent is the one dated 8 August 1972 (‘Approved Plan’). The Approved Plan reveals clearly that only shops 1 and 2 could be used for non-domestic purpose, whereas the area where the UBW is located is prescribed to be used as car park and flower box. At nowhere in the Approved Plan we could find any reference to ‘Shop No. 6’ either. The Respondent has also confirmed with this Tribunal that there is no other approved plan in its record.

22. Furthermore, we notice that the occupation permit of Bo Fung Gardens (No. 135/72) issued on 8 August 1972 also refers to shops 1 and 2 only. There is again nowhere we could find any reference to ‘Shop No. 6’ in the occupation permit.

23. At the hearing, this Tribunal asked whether the Appellant could be able to locate any other plan or document showing that the UBW has been approved and the Appellant could make other inquiries with its solicitors handling the conveyance transaction at the material times of the sale and purchase in 1988 (and it was subsequently given time to do so). However, despite the directions of this Tribunal, no evidence of any sort is produced and forthcoming from the Appellant at all.

24. In the premises, the available evidence only leads us to a conclusion that the UBW was built without the Respondent’s prior consent and approval. There is a misconception perhaps on the part of the Appellant and its representatives. They must appreciate the fact that the land lease may allow any change of use from car park and flower box to shop does not per se negate any approval and consent requirement under section 14(1) of the BO unless the Appellant could invoke the exemptions under section 41(3) of the BO, or it could afford itself any protection under any tolerance policy.

25. We now turn to look at section 41(3) exemption, which is only available if the works do not involve the structure of the building. Section 41(3) of the BO reads as follows:-

(3) Building works (other than drainage works, ground investigation in the scheduled areas, site formation works or minor works) in any building are exempt from sections 4, 9, 9AA, 14(1) and 21 if the works do not involve the structure of the building.

(3) 在任何建築物內進行的建築工程(排水工程、附表所列地區內的土地勘測、地盤平整工程或小型工程除外)如並不涉及該建築物的結構，則獲豁免而不受第4、9、9AA、14(1)及21條管限。

(Emphasis added)

26. It is important to note that the said section refers to works ‘in’ any building (in Chinese: 在任何建築物 ‘內’), and we have to consider what that means. In this regard, guidance can be found in the relevant passage of Court of Final Appeal judgment in the case of Mariner International Hotels Ltd v Atlas Ltd (FACV No. 3 of 2006) (2007) 10 HKCFAR 551 (date of judgment: 5 February 2007) as follows:-

…

27. From the evidence, it is noted that the UBW (i.e. the glazed and masonry structure and the shopfront projections) is erected and built ‘on’ top of the car park and flower box. In our view, the structure cannot be treated as added ‘in’ the building and further, it conflicts with Section 23(3)(a) of Building (Planning) Regulations in Gross Floor Area calculation. We are not satisfied that the UBW could be qualified as exempted works under the said section 41(3).

28. This Tribunal expressly asked the Appellant whether it would see any need on its part to adduce expert or other factual evidence on the enforcement policies on the exempted works of the Respondent in 1972 (the year when the occupation permit was issued) and 1988 (the year of purchase of the Premises by the Appellant), and this was answered by the Appellant in the negative.” (emphasisadded)

25.After having decided that it would only look at the Approved Plan for the purpose of the Appeal, the Tribunal went on to say at paragraph 25 that “[the applicant] must appreciate the fact that the land lease may allow any change of use from car park and flower box to shop does not per se negate any approval and consent requirement under section 14(1) of the BO unless the Appellant could invoke the exemptions under section 41(3) of the BO, or it could afford itself any protection under any tolerance policy”.

26.When all the above parts of the Decision are read in the proper context of the submissions made before the Tribunal and the Tribunal’s questions asked at the hearing (as summarized and quoted above), it is clear to me that:

(1)   The Tribunal accepted the BA’s submissions and decided that the Tribunal should only look at the Approved Plan (but not the Assignment Plan and DMC Plan) to determine where the external wall of Building was for the purpose of deciding whether there was the UBW.

(2)   On that basis, the Tribunal must have also decided (accepting the BA’s submissions) that the external wall was where the building wall was as shown on the Approved Plan, but did not include the flower box wall (as contended by the applicant by relying on the DMC Plan and the Assignment Plan).

(3)   Hence, it further concluded that the glass shopfront together with the canopy fell within section 14(1) of the BO and was not exempted under section 41(3) as it was not built “in” the building.  It was therefore a UBW.  These conclusions, in light of the applicant’s contentions made at the hearing, could also only be reached based on the conclusion that the external wall did not include the flower box wall.

27.In the premises, when read in its proper context as explained above, the Tribunal in the Decision had properly considered and decided the question of where the boundary of external wall was.

28.I therefore reject this ground of judicial review.

C2.    Ground 3 – The Tribunal failed to give any or any adequate reasons for ruling the UBW being “on” but not “in” the Building

29.As rightly submitted by Mr Chung, this ground indeed ties in closely with Ground 2 above.  This is premised principally on the contentions that, since the Tribunal failed to consider and decide on the fundamental question of where the boundary of the external wall was, there simply cannot be any or any adequate reasons for it to conclude that the UBW was not “in” the Building.  This ground therefore stands and falls with the applicant’s success under Ground 2.

30.In this respect, I note that Mr Chung has raised a further argument under this ground.  Counsel submits that the evidence and opinions from the parties as to the correct boundary of the external wall are not purely factual but are technical opinions akin to expert evidence.  Therefore, at the very least (Mr Chung further says), the Tribunal must give adequate reasons why it found the BA’s submissions or opinions should be accepted and more preferable to the applicant’s.  In gist, Mr Chung complains that without expert evidence, there could not be any valid reasons for the Tribunal to conclude on the boundary of the external wall.

31.There is nothing in this submission.

32.As I mentioned above, all along, the applicant was contented to advance the Appeal based entirely on its own arguments (made through its own professional surveyors) relying on the DMC Plan and the Assignment Plan.  As rightly submitted by Ms Cheung for the BA, if the applicant indeed regarded it as necessary to call for any further or additional expert evidence, it should have adduced it before the Tribunal.  However, it had not done so.

33.In the premises, I agree that it is simply not open to the applicant to now complain in this judicial review that the Tribunal could not have accepted the BA’s submissions in the Appeal without the assistance of any expert evidence.

34.For all these reasons, and as I have rejected Ground 2 in the above, Ground 3 must equally fail.

C3.    Ground 4 – The Tribunal failed to give any or any adequate reasons for ruling the UBW not qualified as minor works which may be exempted from section 14(1) of the BO

35.This ground of challenge relates to paragraphs 30 and 31 of the Decision, which state as follows:

“30. The Respondent has helpfully produced the relevant documents and explained as follows:-

(a) the UBW does not fall within the meaning of ‘exempted works’ under the repealed section 28(1) of the Buildings Ordinance 1960 (Cap 123) (‘1960 Ordinance’), the repealed section 41(3) of the Buildings Ordinance 1974 (‘1974 Ordinance’) and section 41(3) of the BO. These sections cover the beginning of the construction period of the Premises until now with which the Appellant is and was subject to comply;

(b) The Respondent (and its predecessor) would only not take any action for unauthorized works if and when the same fall within the exempted works under the said sections;

(c) Since 1975, the Respondent (and its predecessor) has implemented a system of priorities for the control of unauthorized building work. The 1975 policy (which was ceased in 1988) states this:-

(i) Complaints of unauthorized works are to be investigated and action taken against those pose a hazard to life and limb. The remainder complaints are be filed for possible future action.

(ii) All buildings receiving an occupation permit after 31 July 1975 are to be kept under surveillance and immediate action instituted when unauthorized works are observed.

(iii) In every case where a complaint is received about unauthorized works in progress, an inspection will be made immediately and Cease Work Order issued to prevent needless expense by the owner. Where the works are in contravention of the Buildings Ordinance, a Section 24 Order will automatically follow the Cease Works Order regardless of whether the building is pre or post-1975.

(d) The said 1975 policy was superseded by a system of priorities in year 1988, and enforcement action would be taken as matter of priority. To express the 1988 policy in a very simple and not holistic term, any unauthorized building work constituting an imminently dangerous situation where there is an obvious danger to life or property is classified as high priority case, and also those major unauthorized building works which contravene both the BO and lease conditions at the same time. Other cases would fall into low priority category and the Respondent expressly reserved its right to take action as such time as it saw fit.

(e) The 1988 policy has been enhanced in April 2011 when the Respondent decided to adopt a wider scope for action so as to remove unauthorized building works in a more comprehensive and systematic manner. Under 2011 policy, all existing unauthorized shopfront projections except those defined as minor amenity features would be regarded as actionable items.

(f) As the UBW does not satisfy the definition of the minor amenity features with a projection exceeding 600 mm, it is regarded as a prioritized item for enforcement.

(g) The UBW also does not qualify to fall within the definition of minor works which may be carried out without obtaining prior approval and consent from the Respondent if the simplified requirements of the Minor Works Control System are satisfied.

31.   This Tribunal accepts the Respondent’s explanation and is hence unable to find any evidence which suggests the existence of any exemption or policy which could avail the Appellant to succeed.”

36.The applicant now complains the Tribunal had failed to give adequate reasons in concluding that the UBW (i) had a projection exceeding 600mm (under paragraph 30(f)), and (ii) did not fall within the definition of minor works (under paragraph 30(g)). This is so as the Tribunal, without providing any reasons, had simply accepted the BA’s “explanations” and found against the applicant.

37.With respect, there are no merits in this contention. This part of the Decision must again be read in proper context.

38.First, in relation to the more than 600mm projection finding, it is clearly made based on the Tribunal’s conclusion (as found above in this judgment) that the external wall did not include the flower box wall.[4] Once understood as such, adequate reason has been given in the Decision for this conclusion.

39.Second, in relation to the conclusion that the UBW did not satisfy the meaning of minor works, it is clear from the Decision that the BA had indeed submitted and contended in the Appeal that the UBW did not so satisfy the requirements under the Minor Works Control System.  In this respect, it must be noted that it is the applicant which sought to rely on the exemption.  It is thus for the applicant to show and satisfy the Tribunal in the Appeal that it could rely on the relevant exemption by proving that the UBW did satisfy the necessary requirements to qualify as minor works.

40.In the premises, it is for the applicant to adduce whatever necessary evidence to prove that the UBW so satisfy those necessary requirements to qualify as minor works.  This is a fortiori so when the BA indeed put forward a positive assertion that the UBW did not satisfy those requirements (as recorded at paragraph 30 of the Decision).

41.However, the applicant had not put forward any evidence that the UBW satisfied those requirements.

42.All that Mr Chung can point to in this judicial review is that Mr Kwan at the hearing had made the following general submissions that the Tribunal should consider holding a full hearing for the Appeal so that perhaps expert evidence could then later be arranged and heard to have a more comprehensive inquiry:

“查實我哋主要就話既然有幾樣嘢都有疑點嘅話，即係大家講個牆，究竟呢埲係咪高身牆，抑或係等高嘅矮牆呢？大家都有個疑點喺度。牆係咪由嗰度計起呢，又有個疑點喺度。當其個政策係點，亦都係有個疑點喺度。我哋覺得既然呢個個案有疑點嘅，咁樣就唔應該話貿貿然就出一個嗰啲清拆令，一個控訴，呢樣係一個重點。

... 所以我哋希望就可以提出一個全面嘅聆訊，即係要求一個全面嘅聆訊，我哋在座各方面嘅資料搜尋，或者我哋有需要搵專家嚟作證嘅時候，我哋再去安排嘅。好過喺度估...” [p31 F-N of the transcript] (emphasis added)

“... 既然個個唔知嘅 ... 如果唔撤銷(命令)嘅話，最少要都展開全面嘅聆訊，去畀大家去搞清楚啲嘢。因為呢個唔係一個普通嘅簷蓬伸出嚟嘅個案，係你牽涉到好多大家都唔知嘅嘢...” [p34 C-E of the transcript] (emphasis added)

43.Relying on this, Mr Chung submits that the applicant had asked the Tribunal to call for expert evidence in this respect.  The Tribunal however failed to do so and made the conclusion without any or any adequate reasons.

44.There is again nothing in this submission.

45.As I said above, it is for the applicant to adduce any evidence it regarded as necessary to support its reliance on the minor works exemption.  If it really regarded it as necessary to rely on expert evidence to show that the UBW should be properly regarded as minor works and that the Appeal should not be dismissed without a full hearing, it is incumbent upon the applicant to adduce such adequate expert evidence at the preliminary hearing to demonstrate there is at least such a prima facie case.  It would not assist the applicant at all by simply saying to the Tribunal at the preliminary hearing in a general way that the Tribunal should somehow look at some unidentified and un-particularized expert evidence to have a fuller investigation to determine the Appeal.

46.When read in the context of the absence of any such prima facie evidence adduced by the applicant to show the contrary, it is entirely open (and thus reasonable) for the Tribunal to conclude, by accepting the BA’s submissions, that the UBW did not satisfy the Minor Works Control System requirements.  The reason for reaching such conclusion is clear and more than adequate.

47.I will therefore also reject Ground 4.

D.     CONCLUSION

48.For all the above reasons, the applicant fails in all the grounds of challenge.  I will dismiss this judicial review.

49.I will further make an order nisi that costs of this application (including the costs of the leave application) be to the BA, to be taxed if not agreed.

Mr Kenneth Chung, instructed by Leung & Associates, for the applicant

Ms Elizabeth Cheung, instructed by Department of Justice, for the interested party

The respondent, in person, attendance excused