City Season Ltd v. Appeal Tribunal (Buildings)

HCAL 384/2019

[2020] HKCFI 271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 384 OF 2019

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D E C I S I O N

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1.The Applicant made the present application for leave to apply for judicial review of the determination of the Appeal Tribunal (Buildings) dated 16 November 2018 by a Form 86 dated 4 February 2019. The Form 86 was apparently drafted or settled by counsel and solicitors on its behalf.

2.On 15 February 2019, the court directed a rolled-up hearing of the application.  Notice of today’s hearing was given on 26 August 2019 to the Applicant’s solicitors.  On 22 November 2019, the court granted leave to the Applicant’s solicitors to cease to act for the Applicant.  The Applicant has not since appointed any solicitor to act on its behalf in this application, and has failed to appear today to move the application.  The Applicant has also failed to file or serve (i) hearing bundles, and (ii) skeleton argument and list of authorities in accordance with paragraphs 1 and 2 of the court’s order dated 17 September 2019.

3.As previously held by this court in HCAL 1099/2017 ([2018] HKCFI 2331, 16 October 2018) and HCAL 594 & 599/2018 (2018 [HKCFI] 2636, 5 December 2018), where an applicant fails to appear at an oral hearing convened to consider his or her application for leave to apply for judicial review, the court may, in the exercise of its discretion, dismiss the application without consideration of its merits.

4.The present application raises issues relating to:

(1)  the correct measurement of the display area of a signboard for the purpose of Item 1.20(d) of Division 1 of Part 3 of Schedule 1 to the Building (Minor Works) Regulation, Cap 123N, in particular whether the display area should include areas not visible to the public; and

(2)  the correct measurement of the projection of a signboard from the external wall to which it is fixed for the purpose of Item 1.20(e) of Division 1 of Part 3 of Schedule 1 to the Building (Minor Works) Regulation, in particular whether the projection of the balcony/canopy (to which the signboard is fixed) from the external wall of the building should be included in the relevant measurement.

5.The true interpretation of the relevant regulations raises issues of law which it would not be appropriate for the court to determine without hearing arguments on both sides.  In so far as the present application raises issues concerning the correct application of the relevant regulations, properly construed, to the facts of this case, the resolution of such issues does not seem to me to have any general application to other persons or parties.

6.Overall, I do not consider that this is a proper case for the court to determine the merits of the application in the absence of the Applicant.  Accordingly, the application for leave to apply for judicial review is dismissed, with costs to the Building Authority, summarily assessed at HK$100,000.

The Applicant, absent

The Putative Respondent acting in person, absent

Ms Ebony Ling, instructed by Department of Justice, for the Putative Interested Party