Buildings Department v. Trueland Driving Range Ltd

DCMP 2594/2018

[2019] HKDC 478

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2594 OF 2018

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DECISION

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INTRODUCTION

1.By this application, the Buildings Department (“the applicant”) applies for a priority demolition order under section 24B(1)(b) and (d) of the Buildings Ordinance, Cap 123 (“the Ordinance”) against Trueland Driving Range Limited (“the respondent”) for the removal of:-

(i)   1 no of prefabricated office (modified by a double decker bus) (“the Bus”);

(ii)   11 nos of lounges (modified by cars/caravans) (collectively referred to as “the Lounges”); and

(iii)   3 nos of prefabricated offices (modified by cars/caravans) (collectively referred to as “the Offices”)

on Lot Nos 51, 52, 55RP and 65 in DD 126 (“the Land”).

2.The application was first brought before this court pursuant to section 24B(9) of the Ordinance on 18 September 2018.  It was adjourned for argument on 7 December 2018.

BACKGROUND

3.The respondent is a limited company operating a golf driving range and barbeque site on the Land. The Land was leased out by the owner of the Land as landlord to the respondent as tenant under 2 tenancy agreements dated 31 December 2015 for 6 years and 15 years respectively.

4.Since moving onto the Land, the respondent has caused the abovementioned Bus, Lounges and Offices to be placed on the Land to use them as offices for its staff and attractions/lounges for its customers.

5.On 10 September 2018, the applicant issued a “Notice of Application for a Priority Demolition Order” for the removal of the above structures which appear to the applicant that “has been erected with a view to sale, letting, or other disposal” and “constitute a public nuisance”. 

6.The applicant called the Bus, the Lounges and the Offices as “Buildings” or “Building Works” while the respondent would call them “Vehicles”.  For want of a more neutral term, I would collectively refer them as “Structures” in this decision.

Relevant Statutory Provisions

7.Section 24B(l)(b) and (d) of the Ordinance provides that:-

“Where any building has been erected or any building works have been or are being carried out in contravention of any of the provisions of this Ordinance, and it appears to the Building Authority that-

(a) …

(b) the building has been erected or the building works have been or are being carried out with a view to sale, letting or other disposal;

(c) … or

(d) the building or building works constitute a public nuisance,

the Building Authority may, instead of making an order under section 24(1), apply to the District Court for an order under subsection (9).”

8.Section 24B(9) of the Ordinance provides as follows:-

“Upon the application of the Building Authority under subsection (l), the District Court may, on being satisfied-

(a) that notice of the application has been given in accordance with subsections (2), (3) and (4); and

(b) that any one or more of the circumstances set out in subsection (l)(a) to (d) exist,

and after considering any representation of a person who has applied to be heard under subsection (7), if any, make an order for the demolition or alteration of the building or building works.”

9.Sections 24B(2), (3) and (4) of the Ordinance concern the formalities of the notice of the demolition order.  It is not disputed that the applicant has satisfied the requirements under those subsections, as set out in the affirmation of Leung Chi-wai dated 11 September 2018 filed on behalf of the applicant.

Issues in Dispute

10.Based on the above, thus, the issues before this court are:-

(i)   whether the Bus, the Lounges and the Offices are “building” or “building works” as defined under the Ordinance;

(ii)   whether the circumstances set out in section 24B(1)(a) and/or (d) of the Ordinance exist.

DISCUSSION

11.In establishing its case against the respondent, the applicant has produced the expert witness report of Mr George Cheung Hiu Wai (“Cheung”) dated 29 October 2018 (“the Expert Report”).  In it, Cheung has recorded the fact that he had carried out a visual inspection of the Structures on 10 & 11 October 2018, the latter one with Mr Jack Wong Chun-man (“Wong”) of the respondent, which has been referred to as the Owner’s Representative in the Expert Report.

12.The factual findings made by Cheung was recorded under §§5.1 to 5.4 of the Expert Report.  I shall produce them here (without the photo reference numbers) for ease of reference as this part of the Expert Report is largely not in dispute or indisputable:-

“5.1 The total 15 nos. prefabricated offices and lounges subject to the Application could be categorized into following 3 types by their size and modifications/constructions/features:

(a) The one prefabricated office (modified by bus) as described in the Application (“the Prefabricated Office (Bus)”) is a wheeled structure with approximate size of 2.4m (W) x 11.8m (L) x 3.9m (H), and which has been modified from a bus by:

(i) Removal of vehicle’s control panel.

(ii) Removal of all seats (except the last rows of seats at the upper and lower decks).

(iii) Provision of furniture and electrical appliances inside the decks, including tables, chairs, racks, computers, refrigerator, etc.

(iv)   Provision of air-conditioners with indoor units mounted inside the structure and outdoor condensers installed on ground adjacent to the structure.  The indoor units and outdoor condensers connected with pipeworks.

(v)   Provision of power supply.

(vi)   Mounting of plastic wrap at the external surfaces (except windows), and therefore access panel to engine could not be opened readily at the time of inspection.

(vii)   Modification of doors to manual operation instead of powered operation.

(viii)   Modification of the windows adjacent to the central door opening to top-hung windows with manual locks fixed outside.

(ix)   Installation of retractable awning over the top-hung windows.

(b)   The 3 nos. prefabricated office (modified by car) as described in the Application (“the Prefabricated Office (Car)”) is a wheeled structure with approximate size of 1m (W) x 5m (L) x 2.4m (H), and with following constructions and features:

(i)   Installation of fixed windows at the front of the structure.

(ii)   Installation of a hinged glass door at one side of the structure.

(iii)   Installation of a sliding glass door at another side of the structure, which could be covered by a top-hung panel.

(iv)   Installation of siding windows adjacent to the sliding door.

(v)   Installation of top-hung panel over the sliding door.

(vi)   Provision of an air-conditioner with an indoor unit mounted inside of the structure and an outdoor condenser installed at the top of the structure.  The indoor units and outdoor condensers connected with pipeworks.

(vii)   Provision of power supply.

(viii)   Provision of furniture and electrical appliances inside the structure, including tables, chairs, racks with goods, computer sets, refrigerators, etc.

(ix)   Non-provision of vehicle's control panel.

(c)   The 11 nos. prefabricated lounge (modified by car) as described in the Application (“the Prefabricated Lounge”) is a wheeled structure with approximate size of 1.9m (W) x 5m (L) x 2.4m (H), and with following constructions and features:

(i)   Installation of fixed windows at the front and rear of the structure.

(ii)   Installation of siding windows at both sides of the structure.

(iii)   Installation of a hinged glass door at the rear of the structure.

(iv)   Installation of retractable awning over the siding windows at one side of the structure.

(v)   Provision of a semi-opened platform with a balustrade adjacent to the hinged door at the rear of the structure.

(vi)   Provision of an air-conditioner with an indoor unit mounted inside of the structure and an outdoor condenser installed at the top of the structure.  The indoor unit and outdoor condenser connected with pipeworks.

(vii)   Provision of power supply.

(viii)   Provision of table, chairs and sofa inside the structure.

(ix)   Non-provision of vehicle’s control panel.

5.2   All the 11 nos. the Prefabricated Lounge and one of the Prefabricated Office (Car) were connected with external electricity cables at the time of my inspection at afternoon on 10 October 2018.  On 11 October 2018 afternoon, I noted that all the Prefabricated Lounges and all the Prefabricated Offices (Car) were disconnected with the external electricity cables.  Nevertheless, following power supply facilities were noted adjacent to the prefabricated offices and lounges during my inspection:

(a)   Power cables and sockets near to the Prefabricated Lounges and the Prefabricated Offices (Car); and

(b)   Power cables and switch board adjacent to the Prefabricated Office (Bus).

5.3   Upon my enquiries at afternoon on 11 October 2018, the Owner’s Representative replied that:

(a)   No vehicle’s engine has been installed at all the Prefabricated Lounges and the Prefabricated Offices (Car), but it was technically feasible to re-install the cars with engine in future.

(b)   Since the Prefabricated Offices (Bus) parked on site, its engine has not been activated.

(c)   Electricity supply for all the prefabricated offices and lounges has been provided externally via electrical cables, instead of internally by vehicle's engine.

5.4   During my inspection at afternoon on 11 October 2018, the Owner’s Representative said that the Prefabricated Lounges and the Prefabricated Offices (Car) could be moved or pushed manually.  After that, Mr. Wong instructed 2 strong men pushing the car for a distance of approximate 1 m as demonstration with my witness.  And upon my enquiry, Mr. Wong said the Prefabricated Offices (Bus) could not be moved or pushed manually.”

13.While the applicant had in its application for a Priority Demolition Order dated 7 September 2018 inadvertently identified the “building” / “building works” in question as “the said building”[1], there is in my view no doubt as to what the applicant is seeking to demolish, as the Bus, the Lounges and the Offices have been clearly identified.

14.In any event, under section 24B(9) of the Ordinance, this court is not bound by the definitions used by the applicant in the application itself. The court can look at all the available evidence and make a finding as to whether the Bus, the Lounges and the Offices are “building” and/or their erection are “building works” under the Ordinance.  

15.In this case, what the court has to consider and to decide is whether the Bus, the Lounges and the Offices should be regarded as “building” and the works involved in its construction should be regarded as “building works” under the Ordinance.

Are the Bus, the Lounges and the Offices “building / building works” under the Ordinance?

16.In answering this question, I have taken into consideration the 7 factors laid down in Leung Lai-So v The Building Authority, unreported, Appeal Tribunal (Buildings) Case no 44 of 2005 (31 October 2008), which was endorsed by the Court of Appeal in Profit Success Development Ltd v Appeal Tribunal (Buildings) & Another [2013] 2 HKC 506 and examine the evidence in this case in order to decide whether the Structures in question fall within the definition of “building” and their erection “building works” under section 2 of the Ordinance:-

(i)   The degree of fixation of the Structures: In my judgment, while the Structures in question still have wheels attached to them and their external physical appearance resembles a vehicle and/or a caravan, they are firmly fixed to the grounds of the Land with a high degree of permanence.  It is obvious that none of the Structures can be driven around like a motor vehicle as they neither have mechanical parts or power which can propel on its own nor do that have any control mechanisms (such as control panels) which allow them to move around when being pushed or pulled.  I note that they have been “parked” on the same spot of the Land during the inspections carried out by the applicant’s representatives. This is evidenced by the growth of the grass/vegetation around the Structures which indicates that they had not been removed for a long period of time prior to the inspections. For the Bus, Cheung found that it is “fastened on the ground by outdoor units of the air-conditioners fixed on the ground via pipeworks with a platform fixed on ground in contact with the structure”[2], something not disputed and cannot be disputed by the respondent.

Further, even if it is accepted that the respondent no longer charges a fee to visitors to use or take pictures of the Structures in question (which incidentally I would reject as pathetic and untruthful excuses made up by the respondent), it is apparent that, according to Wong’s 2^nd affirmation, they are used as some sort of attractions to lure visitors onto the Land.  As appear from the layout of the 11 Lounges (with bright colour floral paints, large windows and awning on the outside and comfortable seats and air-conditioning on the inside; and outdoor tables and chairs placed on a wooden deck right in front), I find that they are kept on the Land for the respondent’s business in operating a golf driving range / barbeque site.  Also, as Mr Tse Kwok Hung for the respondent has pointed out in his expert report, the materials used for the Structures are “durable to resist weather”^[3]and are not made of temporary materials.  This again shows that they are intended to be fixed on the Land for a considerable period of time.

(ii)   The degree of permanence of the Structures: The Appeal Tribunal (Buildings) has found on previous occasions that in considering whether a structure is “permanent”, it does not necessarily mean the same needs to stay on the same spot for periods measured by months or years but simply that the structure was intended to endure and be kept in a place for a considerable time.  How the structure is secured to the ground is also relevant in considering the “degree” of permanence.  See, for example, In the Matter of Flat Roof, 3/F, Block D Wah Lok Industrial Centre 31-41 Shan Mei Street Sha Tin, New Territories (Appeal Tribunal (Buildings), Case No 36 of 1993) and Harbour Plaza 8 Degrees Limited v Building Authority (Appeal Tribunal (Buildings), Case No 142 of 2012).  I would respectfully agree with and adopt such findings.

While the Structures are not bolted into the ground like the structure in the building appeal case of Wah Lok Industrial Centre, they are obviously of some significant weight and size that it took the effort of two men to move them as the respondent had tried to demonstrate to the applicant’s representatives during one of the inspections.  In my view, whether they could be pushed or pulled by 2 strong men for a short distance is not important as I am sure that given sufficient manpower a double decker bus or even a container truck can be pushed or pulled for a short distance also.  What is more important to look at, in my opinion, is whether the Structures are intended to be placed in the same spot for a considerable period of time.  In the present instance, I find that this clearly was the case.

(iii)   The size of the Structures:  The exact measurements of the different Structures are set out in the Expert Report [See §§5.1(a), (b) and (c) of the Expert Report as cited in §12 above].  In my view, these are by no means small structures.  In fact, they are sizable structures that are big enough to contain large and heavy items of furniture and appliances like desks, tables, chairs, sofas and refrigerators.

(iv)   The intended use of Structures:  Although each of the Structures may have different intended use, it is clear that they are intended to be occupied as offices and/or for recreational purposes.  I find that they certainly are not intended to be used as movable means of transport or vehicles as the respondent would like the court to believe.  In my judgment, just because the Structures have wheels does not mean that they are conveyances or vehicles.  Each case must look at individually and objectively in order to determine the intended use of the object in question.     

(v)   The ease of construction or assembly of the Structures: I agree with Ms Katherine Chan, government counsel for the applicant, that this factor is not strictly relevant in relation to this application as the Structures were not constructed or assembled on site. Rather, the Lounges and Offices were prefabricated caravans purchased by the respondent from a company in Shangdong, Mainland China, then shipped to Hong Kong and placed on the Land^[4]. It is misleading to call them “food carts” as Wong had in his affirmation as they were never intended to be used on the Land as such.  As for the Bus, it was a retired Citybus which the respondent had purchased from an unrelated third party with its engine deactivated and disabled. Again, it did not require construction or assembly on the part of the respondent save from the interiors of the Bus where all the seats had been removed and the space made into an office.    

(vi)   The ease of removal or dismantling of the Structures:  The respondent took pain to repeatedly highlight the alleged mobility of the Structures in question.  However, as said, simply because they can be moved around on the Land (for the Bus, according to Cheung, Wong had informed him that it could not be moved or pushed manually[5]), it does not mean they can be “removed” or “dismantled” easily.  In my view, it would require taking down or de-assembling of the Structures.  Given the degree of permanence and fixture of the Structures in question as mentioned above, I find that it is almost impossible to remove or dismantle them on site without taking them apart.

(vii)   The provision of facilities such as power and water:  It is not disputed that all the Structures have mechanism / sockets to allow them to be connected to electricity supply on the Land.  It is also not disputed that no water supply is connected to the structures as they are not needed.   The electricity come from an external source and not within the Structures themselves as none of the Structures had any means such as an engine to generate its own power.  I reject the respondent’s argument that just because the electricity supply can be unplugged at will that would somehow make them different from cases where electricity cables are permanently connected to the structure itself.  I fail to see the difference between the two.  In reality, in each of the Structures in question, the electricity supplied are for the use of the lights, computers, refrigerators and similar electrical appliances which are meant for occupation and use as offices and/or recreational purposes.

17.For the determination of whether the erection of the Bus, the Lounges and the Offices are “building works” under the Ordinance, I consider the factors to be considered are the same as those whether the structure is a “building”: see Leung Lai-So, supra §18.

18.Based on the analysis of the different factors fall within the above list (of which I have to emphasis is not exhaustive), I have come to the conclusion that the Structures, ie the Bus, the Lounges and the Offices, fall within the meaning of “building” and the erection are “building works” under section 2 of the Ordinance. 

19.If any authorities are needed to support my conclusion above, I would refer to the following Appeal Tribunal (Building) decisions where the tribunals had made similar findings on what constituted to “building” or “building works” under section 2 of the Ordinance:

(i)   In the case of Hui Wai Ling Winnie v Building Authority (Appeal Case No 93 of 1996), a mobile house on a flat roof with connection to electrical supply for the TV and other lighting facilities inside was considered a “building” and its construction “building works” under section 2 of the Ordinance.

(ii)   In the case of In the Matter of Flat C, 2/F, 10-20, Tai Wo Street, Hong Kong (Case No 27 of 1991) (with Mr Geoffrey Ma as the Chief Justice then was as the chairman of the tribunal), the definition of “building” in section 2 of the Ordinance was found to be sufficiently wide to cover a structure on wheels and there are no words in the section which limit the definition to structures which are stationary.

Whether the Building / Building Works are used for “letting” and/or “other disposal”?

20.The respondent submits that there is no documentary evidence to show that they are charging a fee for the use of the facilities on the Land.  Wong in his 2^nd affirmation stated that “none of the cars were used or intended to be used by the respondent or any other person for the purpose of sale, letting or disposal purpose”.  He stated that the main purpose and use of the lounge were always for “static display purpose, with an additional charging fee be imposed if any customer wishes to use the bbq area with a carpark there.”[6]

21.I have no hesitation to reject such preposterous suggestions. 

22.First, the respondent’s official website provides information that the Lounges are used for leasing out to visitors for recreational purposes.  Specifically, the fee for letting a lounge (modified by car / caravan) for BBQ purpose is at HK$600 for half a day and HK$800 for a full day on normal days.  The letting fee is at HK$300 per lounge for half a day and HK$400 per lounge for a full day during special periods. 

23.Thus, it is clear that the lounges are for letting purposes.

24.Second, even if the Bus and the Offices are not directly leased out to the public for recreational use, it is clear that they are used by the respondent as part and parcel of its commercial activities, namely, to provide a golf driving range and a BBQ site on the Land.  Inside the Bus, there was a large refrigerator and other small electrical appliances together with writing desks and chairs and filing cabinets on the lower deck.  On the upper deck, there were a number of writing desks and chairs and a few computers.  Both decks were fitted with split-type air-conditioning units.  There is no doubt that they are all fitted out to be used as an office to carry out the respondent’s business.  As for the Offices, they are filled with furniture, computers, golf clubs and displaying shelves and refrigerators for storing goods and soft drinks (which are apparently displayed for sale).  I find that they are most likely the retail outlets of the respondent where customers can make bookings and purchase of drinks and snacks.

25.I find the above usage falls within the definition of “other disposal” under section 24B(1)(b) of the Ordinance.

26.Third, I would refute the ludicrous claim of the respondent that the original “business model” was to charge its customers for taking pictures with the Lounges.  Wong claims that their business model had changed when they found the customers were unwilling to hire the lounges but still wanting to take pictures outside the lounges.  They therefore provided the Lounges to their customers and visitors to the Land without any extra charge “in accordance with the letting plan” as shown in their website.  The respondent claims that this had been happening even before the application took out the present application.  Their excuse is that they had not updated the website.    

27.Not only such claim is inconsistent with the evidence (as revealed by the respondent’s own website), it simply does not make commercial sense to charge visitors for taking pictures of the lounges.  Besides not seeing any aesthetic value of why visitors would like to do that, such charging method is totally unenforceable as these days everyone with a mobile phone is a photographer.  I have no difficulty to reject Wong’s claim.

28.In the aforestated premises, I find the Structures were used by the respondent for “letting” and/or in any event fall within the definition of “other disposal” under section 24B(1)(b) of the Ordinance.

Whether the Building / Building Works constitute to a public nuisance?

29.The applicant has produced evidence that the Police had received reports from members of public complaining of noise emitting from the Land and the adjoining land.  The memorandum of the Police was dated 20 August 2018.

30.Wong in his 2^nd affirmation referred them as “alleged reports of public nuisance”.  It is not clear why the respondent would refer them as “alleged” reports of public nuisance when actual reports had been received by the Police and acted upon. I note the respondent has not produced any positive evidence to rebut such record of noise complaints which had been received by the Police since July 2017.  This is consistent with the time when the caravans were purchased by the respondent from the Mainland which invoices were dated sometime in November 2017.

31.While it is true that not all the complaints referred to the Land as there are reference to other lot numbers, what is clear is that the Lounges are the main attractions of the BBQ site. The layout of the Lounges (with a wooden deck/platform built in front of each of the caravan; awning extended from the side of the caravan; and outdoor table and chairs placed on the deck) suggests that BBQ / social gatherings would centre upon these Lounges.  It is not difficult to imagine that excessive noise would be produced while such gatherings were taking place.  

32.Based on the above, I would infer and find that there had been complaints of noise coming out from the Land which constitute to public nuisance under section 24B(1)(d) of the Ordinance.

Was there any “legitimate expectation”?

33.In a desperate attempt to defend the matter, Mr Wilson Tam, counsel for the respondent, relies on the doctrine of substantive legitimate expectation to try to say why an order should not be granted in this case.

34.With respect, this has been totally misconceived.

35.First, in my view, this case does not fall with the public law sphere as it is purely a dispute between a government authority and a private company.  In any event, if it is a public law matter, then this court does not have jurisdiction to deal with the same as the proper venue is a public law court by way of a judicial review application.

36.Second, this case does not fall within the recognised criteria of the doctrine as (i) no promise or representation had been given by the applicant to the respondent that they would be allowed to place or erect the Structures on the Land; (ii) there was no reliance on such alleged promise or representation by the respondent; (iii) no abuse of power on the part of the applicant has been shown; and (iv) no unfairness was created to the respondent.

37.Hence, the respondent’s claim insofar as it is relying on the doctrine of substantive legitimate expectation must be rejected.

CONCLUSION

38.In conclusion, based on the above, I would allow the applicant’s application for a priority demolition order against the respondent for the “Building” / “Buildings Works” in question, namely, the Bus, the Lounges and the Offices.  I would order the respondent to demolish the Structures within 28 days from the date hereof.

39.Costs will follow the event. I would make an order that the respondent to pay the costs of the applicant, such costs to be taxed if not agreed.  

Ms Katherine Chan, government counsel, of Department of Justice, for the applicant

Mr Wilson Tam, instructed by Cheung & Liu, for the respondent