Building Authority v. Appeal Tribunal (Buildings)
|
HCAL 25/2014 [2018] HKCFI 2761 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 25 OF 2014 _______________
_______________
_____________________ J U D G M E N T _____________________ A. INTRODUCTION 1.This is the Building Authority’s judicial review application seeking to challenge the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the Tribunal”) dated 4 December 2013. 2.By way of the Decision, the Tribunal allowed the appeal (“the Appeal”) of the two interested parties (“the IPs”) in this application and set aside the Dangerous Hillside Order (“the DH Order”) issued by the Building Authority (“the BA”) on 27 June 2006 to the IPs. 3.In this application, the BA is represented by Mr Y C Mok (together with Mr Mike Lui), and the IPs are represented by Mr Anthony Ismail (together with Mr Justin Ismail). In line with normal practice, the Tribunal has remained neutral and is excused from attending this hearing. 4.The background leading to the DH Order and this judicial review is not in dispute. They can be summarized as follows.[1] B. BACKGROUND B1. The facts 5.The IPs were at all material times registered owners of Houses 61A, 61B and 61C built on Lot No 1116 in DD253 (“the Lot”).[2] The Lot was held under the terms and conditions of New Grant No 4796 and the IPs were at all material times obliged to observe such terms and conditions qua government lessee. 6.There was, adjoining the Lot, the “Feature” comprising a formed or manmade land and an earth-retaining structure. 7.Atop the Feature was a platform where Houses 61D and 61E were located.[3] 8.The Feature included a cut-slope of about 2m in height (“the Cut-Slope”). The Cut-Slope sat at 60 degree occupying about 1/3 of the Feature’s area, with a 1m high concrete wall at its toe and a 1.8m high random rubble wall at crest.[4] 9.Situated to the west of the Feature was a small uphill path or road, through which one could access Houses 61D and 61E and their surrounding area.[5] 10.In June 2001, Maunsell Geotechnical Services Ltd (“Maunsell”)[6] prepared a report on the Feature advising that there were damage and cracks found.[7] 11.In January 2005, Maunsell prepared a Stage 2 report concluding, based on its further investigation results, that the Feature had become dangerous.[8] 12.The Tribunal’s determination concerns its view taken in connection to two portions of the Feature:[9] (a) the Cut-Slope (formed as a result of cutting at the original hillside or slope); and (b) the “Other Part”. 13.The Cut-Slope was formed in 1970 to 1973 as a result of cutting activities at the original hillside or slope.[10] 14.It is common ground that what made the Cut-Slope dangerous by the current geotechnical standards was its profile or design for this type of ground condition, ie, the 60 degree angle at which it sat on the ground or had been cut.[11] 15.The Decision at paragraphs 33 - 34 recorded the evidence that when the Cut-Slope was formed, there was no geotechnical standards applicable to slopes cut from rock and the Cut-Slope was designed and formed according to what was acceptable according to the then industry practice and understanding.[12] It had, however, been found to be dangerous by the geotechnical standards at the time of issuance of the DH Order. 16.In this respect, the IPs did not dispute that the Feature had become “dangerous”.[13] 17.On 27 June 2006, having considered Maunsell’s Stage 2 report, the BA issued the DH Order to the IPs, as owners of the Lot, in respect of the Feature requiring them to (a) appoint an Authorised Person and a registered geotechnical engineer to investigate, analyse, and report on the Feature within two months; and (b) submit remedial or preventive works proposals for approval by the BA based on the findings of the above investigation within seven months. The DH Order did not require the IPs to repair or maintain the Feature but only required investigation and report. 18.The BA issued the DH Order to the IPs as it was of the view that the IPs had an obligation under Special Condition 8 (“SC8”) of the Government lease to maintain and repair the Feature. In the premises, under section 27A(1) of the Buildings Ordinance (Cap 123) (“the BO”),[14] the BA can serve an order on the IPs to require them to investigate and report on the Feature, and to submit remedial or preventive works proposals for the BA’s approval. 19.The IPs appealed against the DH Order. The Appeal was heard in June and September 2012. The Decision was delivered on 4 December 2013. B2. Reasons of the Decision 20.The IPs raised seven grounds of appeal;[15] six of them (grounds 1, 2, 4, 5, 6 and 7) were rejected.[16] The Tribunal allowed the appeal on ground 3, and also an additional ground raised by the Tribunal itself. 21.In raising ground 3, the IPs contended that the Feature in its entirety was not formed at the same time when the then owners of Houses 61A, 61B and 61C developed the Lot. The Tribunal dealt with this point in two parts by looking at the Cut-Slope and at the Other Part separately, and held:
22.It was in ruling that the Other Part was not shown to have been formed when developing the Lot that the Tribunal addressed the meaning of SC8. It held that SC8 only obliged the IPs to maintain or repair “retaining wall” or “other support” built to protect the Cut-Slope; and since the Other Part was not such support, the IPs had no duty to maintain or repair the Other Part; and the DH Order was unlawful or invalid because it covered the entire Feature.[19] For convenience, I will refer this as the “First Reason”. 23.Further, the Tribunal also held that in any event SC8 only imposed a duty on a grantee to maintain or repair, but not improve, a slope or structure. Since the Feature had become dangerous only by current standards, requiring the IPs to repair it meant they were asked to “improve” it, but they had no duty to do that. In this respect, the Tribunal said section 27A did not assist the BA as it did not impose any duty on top of what SC8 obliged.[20] I will refer to this reason as the “Second Reason”. It is common ground that this ground was not raised by the IPs themselves in the Appeal. 24.The BA applied for leave to judicially review the Decision on 28 February 2014, seeking to quash the Decision and for an order remitting the Appeal to a differently constituted Tribunal for reconsideration. 25.On 13 May 2014, the court granted leave on the grounds as set out under the Amended Form 86. The filing of evidence by the parties was completed on 12 March 2015. The parties only applied to fix the date of the hearing of the judicial review in January 2017, which date was fixed to be on 27 October 2017. 26.By a summons dated 23 March 2017, the BA seeks leave to further re-amend the Amended Form 86. I will consider the proposed amendments de bene esse and determine the amendment application at the end of this judgment. C. THIS JUDICIAL REVIEW 27.Mr Mok raises the following grounds of challenge in this application, which I would consider in turn. C1. Ground 1 – Erroneous construction of SC8[21] 28.This ground relates to the challenge against the Tribunal’s construction of SC8. I should first set out SC8 in full as follows:
29.As mentioned above, under the First Reason, the Tribunal construed SC8 to mean that it only applied to the Cut-Slope in the present case, and did not apply to the Other Part. As a result, the IPs under SC8 only had an obligation to maintain and repair the Cut-Slope but not the Other Part. Hence, the IPs did not have an obligation to repair and maintain the entire Feature, the DH Order (which related to the entire Feature) was invalidly issued by the BA. 30.The Tribunal explained this part of the reasons at paragraphs 15 - 25 of the Decision as follows (footnotes omitted):
31.Hence:
32.Under this ground, Mr Mok submits that the Tribunal’s construction of SC8 is wrong. Mr Mok contends that on a proper construction, SC8 applies to both the Cut-Slope and the Other Part in the present case. 33.Mr Mok’s contentions run as follows. 34.SC8 should be construed in the proper context of its purpose, which is as follows:
35.SC8 then provides how to protect those affected adjacent hillside or banks and the lot itself, and what the grantee is liable for or should do if landslip, subsidence or falling away occurs at the adjacent hillside or banks or the lot, by imposing three separate and continuing duties:
36.The First Duty and the Second Duty have no temporal restriction:
37.The Third Duty echoes the SC8 Purpose and reinforces the importance of protecting and maintaining the safety and adequacy of the adjacent hillside or banks in that if landslip, subsidence or falling away occurs, the grantee would have to reinstate and make good not only the part cut etc, in forming the lot, but the adjacent hillside or banks. 38.Mr Mok says the Tribunal erred in law in relying on the First Reason (ie, SC8 obliged the IPs only to maintain or repair retaining wall or other support built to protect the Cut-Slope, not the Other Part since it was not such support)[23] in that:
39.On the facts and evidence of the case, the IPs were clearly caught by SC8:
40.Mr Mok therefore concludes that, by reason of its erroneous construction of SC8, which is an error of law, the Tribunal failed to hold the IPs were caught by SC8 on the facts set out in paragraph 39 above. The Tribunal should have held that the IPs were liable to maintain the Feature under SC8, and the DH Order validly issued under section 27A. 41.With respect to Mr Mok, I am not persuaded by the above submissions. In my view, the Tribunal was correct in its construction of SC8. I will explain why. 42.The relevant principles on construction for the present purpose are not in dispute, they can be summarized as follows:
43.Bearing these principles in mind, I now turn to look at SC8. 44.For the present purpose, the focus is, on a proper construction, what are the words “such adjacent hillside” in SC8 intended to mean objectively. For the following reasons, I agree with Mr Ismail that they are intended to refer to the particular part of the hillside nearby the subject lot where “cutting or removing” has been carried out for the purpose of the formation or levelling of the lot itself. 45.First, one looks at the ordinary meaning conveyed by those words in the context of the sentences as follows: “Where any cutting away, removal or setting back of adjacent or nearby hillside or banks … is required for the purpose of or in connection with the formation, levelling or development of the lot or any part thereof, the grantee shall construct … such retaining walls or other support as shall or may then or at any time thereafter be necessary to protect and support such hillside and banks … and to obviate and prevent any falling away, landslips or subsidence occurring thereafter, and shall at all times maintain the said retaining walls or other support in good and substantial repair and condition. In the event of any landslip, subsidence or falling away occurring at any time whether in or from the adjacent hillside or banks … the grantee shall at his own expense reinstate and make good the same” (emphasis added). 46.As submitted by Mr Ismail:
47.The ordinary meaning of those words therefore supports the construction that the words “the adjacent hillside” used in SC8 refer to only those parts of the adjacent hillside where the “cutting away, removal or setting back of” had been carried out. 48.Second, I also find that this ordinary meaning of the words not inconsistent with the SC8 Purpose as submitted by Mr Mok. As counsel points out, the purpose of SC8 is to protect and support “such hillside” and to obviate and prevent any falling away, landslips or subsidence occurring thereafter. It begs the question of what is the meaning of “such” hillside. 49.In relation to that, in my view, it would only be consistent with a reasonable objective intention of the parties to the grant that the grantee’s obligation to maintain and repair “the adjacent hillside” of the lot is to the extent that it is affected by works carried out by the grantee himself for the purpose of the lot. As I asked Mr Mok at the hearing, it would be beyond an objective and reasonable contemplation of the grantee that he will be liable to maintain and repair the entire hillside adjacent to the lot he is granted, no matter how large and extensive that hillside is and no matter whether that hillside is or is not affected by any works carried out by the grantee himself. If that was the case, the grantee would be subject to an unduly extensive and unforeseeable exposure to obligation of maintenance and repair, which cannot be within the reasonable contemplation of the parties in entering into the lease. 50.Mr Mok seeks to say that “such adjacent hillside” is a reference to those parts of the adjacent that are “affected” by the cutting away works. However, in my view such a meaning is simply not borne out expressly in the context nor has it to be implicated in order to give any useful meaning to SC8 or to render it workable. I therefore do not accept such a construction. 51.For these reasons, I reject Mr Mok’s contentions on the construction of SC8, and conclude that, on proper construction, SC8 imposes an obligation on the grantee of the lease to “repair and maintain” (a) those parts of the adjacent hillside where the grantee has carried out “cutting away, removal or setting back” for the purpose of or in connection with the formation, levelling and development of the lot or any part thereof, and (b) the retaining wall or other support constructed by the grantee. 52.In other words, the Tribunal construction of SC8 is correct as a matter of law. 53.I therefore reject this ground of challenge. 54.This conveniently takes me to look at the BA’s challenge on the Tribunal’s finding that the Other Part was not formed at the same time with the Cut-Slope. C2. Ground 3 – Erroneous ruling on when the Other Part was formed[29] 55.As mentioned above, the Tribunal found on the evidence that the Other Part was not formed at the same time as the Cut-Slope and not by the IPs’ predecessor owners of the Lot. 56.The Tribunal explained this finding in the Decision as follows (footnotes omitted):
57.Mr Mok submits that the said factual finding is Wednesbury unreasonable. 58.With respect to Mr Mok, I am unable to agree. 59.As submitted by Mr Ismail, it is trite that the court in judicial review does not sit as an appeal court. It is not for the court to evaluate the evidence or make disputed findings of fact. The court generally cannot and should not substitute its own findings of fact for those of the decision maker if there is evidence to support the finding. Questions as to weight to be given to a particular piece of evidence are for the decision maker and not the court. The court only reviews its legality and not the merits.[30] 60.In this respect, finding of fact involving a broad spectrum ranging from the obvious to the debatable to the just conceivable are best left to the public body to whom statute has entrusted the decision making power, save in a case where it is obvious that the public body, consciously or unconsciously, is acting perversely, such as making a finding without any evidential basis.[31] 61.Applying the above approach, the Tribunal’s finding that the Other Part was not formed at the same time as the Cut-Slope obviously cannot be said to be Wednesbury unreasonable. As shown above, the conclusion was based on the Tribunal’s careful assessment of the evidence laid before it, and the evidence was capable of supporting such a finding, although the BA may disagree with it. 62.In particular, as pointed out by Mr Ismail:
63.The BA says there was evidence from its expert, Mr Lo, which supported the view that the Cut-Slope and the Other Part were formed at the same time as they belonged to one large hillside, and the cutting (creating the Cut-Slope) must have had an adverse effect on the stability of the Other Part for they both sat at 60 degree with the ground and there was also no “transition” constructed between them.[33] However, it complains under this ground that the Tribunal overlooked or ignored this part of the evidence.[34] 64.I am not convinced. 65.Insofar as the complaint is that the Tribunal had simply ignored and did not consider at all this part of the evidence, I do not agree. 66.First, it was clear that at the hearing, the Tribunal’s chairman and members actually engaged with Mr Lo in this part of his evidence.[35] They were therefore fully aware of Mr Lo’s evidence in this respect. Further, the Tribunal at paragraphs 15 ‑ 17 of the Decision obviously rejected the theme advanced by Mr Lo in his evidence that the Other Part was formed at the same time with the Cut-Slope and that the cutting of the Cut-Slope had an adverse impact on the Other Part. This is so as the Tribunal was of the view that if the Other Part indeed was formed at the same time with the Cut-Slope and that the formation of the Cut-Slope would have an adverse or dangerous effect on the Other Part, this would have been included in the application for approval for the work of the Cut-Slope. However, that was not included and hence, the Other Part could not have been formed at the same time as the Cut-Slope. 67.The BA has also said if the Tribunal had somehow rejected Mr Lo’s evidence, this conclusion is also tainted with procedural unfairness as it had failed to give adequate reasons to explain why the evidence is rejected.[36] 68.I also do not accept this complaint. As I have explained at paragraph 66 above, properly read, the Tribunal had adequately explained the reasons why it did not accept the BA’s case (as supported by Mr Lo’s evidence) that the Other Part was formed at the same time as the Cut-Slope and that the cutting away adversely affected the Other Part. 69.Insofar as if this complaint is to challenge the weight that the Tribunal put on this part of the evidence against the other evidence it had considered, this is not within the purview of judicial review as explained above. 70.In the premises, I will also reject this ground of challenge. C3. Ground 2 – Erroneous ruling about no “improvement” obligation[37] 71.As said by Mr Mok, this ground concerns the Second Reason, which basically was that neither SC8 nor section 27A imposed on obligation on the IPs to “improve” the Feature. 72.Given my above rejection of Grounds 1 and 3, strictly speaking it is not necessary for this court to deal with this ground of challenge as the judicial review has to be dismissed. 73.However, for completeness sake, I would deal with this ground shortly. 74.The Tribunal explained the Second Reason at paragraphs 33 to 39 of the Decision as follows (footnotes omitted):
75.In the premises, the Tribunal was of the view that:
76.Mr Mok contends that the Tribunal erred in this reasoning in that SC8 and section 27A do not impose obligation to “improve” the Feature. 77.I agree with Mr Mok. 78.I think it is unfortunate that the Tribunal labelled the works required to be done under the DH Order as “improvement” in determining whether the IPs were under a SC8 obligation to do the same. 79.The proper way is again to look at the wording of SC8 to determine the scope of the relevant obligation. In this respect, it is important to read that, under SC8, the grantee “shall construct … such retaining walls or other support as shall or may then or at any time thereafter be necessary to protect and support such hillside”. 80.In other words, under this part of SC8, the IPs as lessees shall construct such “other support” to protect and support such adjacent hillside if at any time thereafter is necessary to do so. The words “any time thereafter” by its ordinary and natural meaning objectively refers to any time after the original cutting away or removal or setting back of the adjacent hillside. There is therefore no temporal limit to this requirement. This meaning is further reinforced by the preceding words “shall or may then”, as these words already refer to the very time when the work of the cutting away or removal is carried out. 81.In this respect, I also agree with Mr Mok’s submission that, properly read, the need to construct retaining walls or other support contemplated by this part of SC8 could have arisen “at any time” after development of the Lot. So long as there was such need, the IPs had to discharge this duty irrespective of what caused such need. Further, the duty is to construct those walls or support “necessary” to protect and support the subject hillside, and common sense dictates that what is necessary “at any time thereafter” should be judged by reference to applicable current standards. Otherwise, the words “at any time thereafter be necessary” would become superfluous and meaningless. 82.In the present case, as Mr Mok points out, no one has disputed that the Feature has become dangerous, even though it is because, under the present date knowledge of hillside and slope safety, the said original 60 degree cutting has rendered the said hillside dangerous and liable to fall. In other words, it has now become necessary to construct such other support or retaining wall to protect and support the said adjacent hillside. 83.In the premises, under SC8, the IPs has an obligation to construct those walls or support “necessary” to protect and support the subject hillside irrespective of why the Feature was or had become dangerous. 84.Once the SC8’s obligation is so properly understood, it is not a case that section 27A(1) imposes a higher or wider obligation than as imposed by the Government lease on the IPs to “improve” the Feature as found by the Tribunal. 85.I therefore accept Mr Mok’s submissions that the Tribunal had erred in law in its Second Reason. 86.This part of the Decision should therefore be quashed. D. CONCLUSION 87.For the above reasons, although the BA succeeds in its challenge against the Second Reason, the BA fails in its challenge against the First Reason. On that basis alone, the judicial review against the Decision should still be dismissed as the Appeal was correctly allowed under the First Reason. 88.Further, although I have dismissed the grounds challenging the First Reason, I would not say that the proposed further amendments made in the draft Re-Amended Form 86 in support of those grounds are not reasonably arguable with a realistic prospect of success if they are considered at the leave stage. I would therefore formally grant leave to the BA to amend the Amended Form 86 in the form of the draft Re-Amended Form 86. Costs of the application to re-amend be in the costs of the judicial review. 89.In light of the above outcome, I believe a fair and just costs order should be that the BA should bear half of the IPs’ costs in this judicial review. I therefore make an order nisi that half of the costs of this application be to the IPs to be taxed if not agreed. 90.I thank counsel for their helpful assistance in this matter.
Mr Mok Yeuk Chi and Mr Mike Lui, instructed by Department of Justice, for the applicant The respondent, in person, attendance excused Mr Anthony Ismail and Mr Justin Ismail, instructed by Betty Chan & Co, for the interested parties [1] This is largely taken from the helpful summary set out in Mr Mok’s skeleton. [2] The Decision at paragraph 2. [3] Paragraph 2 of the Decision. [4] Paragraph 2 of the Decision. [5] Paragraph 3 of the Decision. For illustration, see Exhibits A1 [B2/90], R1 [B2/97] and R2 [B2/91]. [6] Engaged by Geotechnical Engineering Office of Civil Engineering and Development Department. [7] Paragraph 4 of the Decision. [8] Paragraph 4 of the Decision. Maunsell’s Stage 2 Report (dated 25 January 2005). [9] This came from undisputed evidence of Mr Joseph Lo (“Mr Lo”) (the Authority’s expert): Exhibit R5 [B2/83] (his explanations at Transcript [B5/790R-793F]) and Exhibit R8 [B2/118] (his explanations at Transcript [B5/805P-810O]). [10] Paragraphs 13 - 14 of the Decision. [11] Paragraphs 4 and 33 of the Decision. The finding was based on undisputed evidence of Mr Lo: Transcript [B5/761R-U; 764P-766D]. [12] Paragraph 34 of the Decision. [13] Paragraph 9 of the Decision; Transcript [B5/699Q-S]. [14] Section 27A(1) of the BO provides: “Where in the opinion of the Building Authority any natural, formed or man-made land, or any earth-retaining structure, has due to any cause been rendered so dangerous or liable to become so dangerous that it will collapse, or be likely to collapse, either totally or partially, and thereby will cause, or will be likely to cause, a risk of injury to any person or damage to any property, the Building Authority may by order in writing served on the owner of the land or structure, or on the person who under the terms of a Government lease is under an obligation to maintain the land or structure, declare the land or structure to be dangerous or liable to become dangerous.” (emphasis added) [15] Paragraph 9 of the Decision. [16] Paragraphs 10 - 11 and 26 - 32 of the Decision. [17] Paragraphs 13 ‑ 14 of the Decision. [18] Paragraphs 15 - 18 of the Decision. [19] Paragraphs 23 - 24 of the Decision. [20] Paragraphs 33 - 39 of the Decision. [21] See: Draft Re-Amended Form 86, paragraphs 19, 20-22B. [22] See paragraph 23 of the Decision: “該地段的業主所須要承擔的保養維修責任，亦只限於該些護土牆或其他承托物。該地物的其他部分，並非該斜坡的承托物，答辯人亦沒有作如是建議，故該特別條件並沒有把維修該地物其他部分（即該斜坡以外的部分）的責任，加諸該地段的業主或前業主身上”. (emphasis added) [23] Paragraphs 23 - 24 of the Decision. [24] Paragraph 23 of the Decision: “該特別條件提及的「附近的山坡」（‘adjacent or nearby hillside’），是指在有關地段附近被削去、移除或後移（cut away, remove or set back）的山坡，即本案的該斜坡，而不是指該斜坡附近的山坡（即該地物的其他部分）。” [25] Paragraphs 13 - 14 of the Decision. Mr Lo explained the formation of the Cut-Slope by cutting into one hillside or slope and where that original hillside or slope had been by reference to the plans prepared at the time of application for approval [B3/218-220]: see Transcript [B5/740E-741O, 742T-750R]. He also identified, based on 1963 [B2/75] and 1972 [B2/78] aerial photos, the original hillside or slope that had been cut (Transcript [B5/788P-789N, 790R-793F]; it was in giving such evidence that he prepared Exhibit R5 [B2/83] (identifying the Feature) using the 1972 aerial photo. [26] Ibid. [27] Paragraph 2 of the Decision. The undisputed evidence produced before the Tribunal was (a) Maunsell’s Stage 2 Report at paragraph 2.2 and photos showing the Feature. [28] Paragraph 22B of the Draft Re-Amended Form 86. [29] See: Draft Re-Amended Form 86, paragraphs 19 and 19A. [30] See: Building Authority v Appeal Tribunal (Buildings) and Estoree Ltd (HCAL 147/2002, 25 July 2003, Hartmann J) at paragraph 58; Blendoran Ltd v Appeal Tribunal (Buildings) (CACV 196/2016, 20 October 2017, Cheung, Kwan JJA and McWalters J) at paragraph 8 perKwan JA; Technic Investment Co Ltd v Appeal Tribunal (Buildings) [2012] 3 HKLRD 245 at paragraph 56 perLam J (as the learned VP then was); R v The Director General of Telecommunications, ex parte Cellcom Ltd [1999] ECC 314 at paragraphs 26 and 27 per Lightman J; and Profit Success Ltd v Appeal Tribunal (Buildings) [2013] 2 HKC 506 at paragraph 63 per Au J. [31] See: R v Hillingdon London Borough Council, ex parte Puhlhofer [1986] 1 AC 484 at 518D-E perLord Brightman; Sky Ace Enterprises Ltd v Appeal Tribunal (Buildings) [2017] 1 HKC 308 at paragraph 41 perG Lam J; Blendoran, at paragraph 7 per Kwan JA. [32] See: the Decision at paragraph 27. [33] See Transcript [B5/805P-810O]. [34] See paragraph 19A.2 of Draft Re-Amend Form 86, which stated: “在該上訴的聆訊中，專家證人盧耀宗先生指出該地物在1972年形成時，被削的「斜坡部份」與「其他部份」屬於同一個斜坡，而被削的部份對「其他部份」一定在後者的安全程度上有著負面影響，理由是該「其他部份」亦因為削坡的活動而令其安全程度受影響。當他回答上訴審裁小組成員就有關被削的部份與「其他部份」之間的過渡位（transition）的問題時，盧先生亦指出該兩部份之間並沒有一個常見的過渡位，而該兩個部份同樣是有著60°的山坡角度的。在該上訴的整個聆訊中，盧先生就這議題所給的證供或專家意見從沒有被上訴人或上訴審裁小組的任何成員挑戰。盧先生這方面的證供亦充份顯示「斜坡部份」與「其他部份」乃於同一時期因削坡工程而被產生或形成，但上訴審裁小組在該裁決中卻從沒有提及該等與案有關並且是重要的證供。因此，建築事務監督認為上訴審裁小組的事實裁斷不合理，又或於事實裁斷過程中，忽略了盧先生的有關證供。” [35] See footnote 33 above. [36] See paragraph 19A.3 of the Draft Re-Amended Form 86. [37] See: Draft Re-Amended Form 86, paragraphs 19, 23 - 27. | ||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Building Authority v. Appeal Tribunal (Buildings)
He Wei v. Director of Immigration
The Incorporated Owners of Garden Vista v. Appeal Tribunal (Buildings Ordinance)
Tong Wun Ying Polly v. Appeal Tribunal (Buildings) and Another
Deluxe Ascent Ltd v. Director of Lands
Other judgments that cite this case
Further hearings and rulings under HCAL 25/2014