Peter a. De Kantzow and Another v. The Appeal Tribunal

CACV000053/1991

BETWEEN

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Coram: Hon Sir Derek Cons, V-P, Kempster and Clough, JJA

Date of Hearing: 8 October 1991

Date of Judgment: 8 October 1991

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JUDGMENT

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Kempster, JA :

1. This is an appeal by the members of an Appeal Tribunal established by HE The Governor under s. 43 of the Buildings Ordinance (Cap 123) against orders of certiorari and mandamus made by Bokhary J on 7 February 1991 quashing their decision not to hold and requiring them to hold an inquiry into the complaints of Mr and Mrs de Kantzow in relation to a demolition order. Earlier this morning a motion for leave for Mr and Mrs de Kantzow to cross-appeal, filed on 26 September and adjourned to us by order of the single Justice of Appeal, was withdrawn and dismissed.

2. In May 1986 Mr and Mrs de Kantzow acquired a house in Shek-O village which, before or after that date, has been subject to building works unapproved by the Director of Buildings and Lands, being "the Building Authority", as required by s 14(1) of the Ordinance. On 23 February 1988, in the exercise of the discretion conferred upon him by s 24(1) the Director ordered the demolition of such works. Quebstock Ltd v The Building Authority [1986] HKLR 467. Whether his order followed a letter dated 8 April 1987 requiring the cessation of building activity, whether oral permission had, in any event, been given for work to proceed and whether the works being carried out constituted no more than renovation were matters in issue.

3. Section 44 of the Ordinance provides that -

There is no provision for time to be enlarged.

4. By their Solicitor's letter of 2 November 1989 Mr and Mrs de Kantzow purported to give notice of appeal to the Director of Buildings and Lands pursuant to s 44. On 13 March 1990, despite the fact fhat the notice was out of time, he referred the matter to the Appeal Tribunal for consideration and on 23rd of that month its clerk wrote to the solicitors for Mr and Mrs de Kantzow intimating that a closed meeting would be held to determine, after due consideration, whether good cause for the holding of an inquiry had been shown as required by paragraphs 1(2) and 2 of the First Schedule. On 19 April the clerk wrote again to the effect that the appeal had been dismissed since no good cause warranting a full inquiry had been shown.

5. Bokhary J held that the Tribunal had failed to give due consideration to the questions falling for their determination, had and had appeared to have acted unfairly and that the dismissal of the appeal was "Wednesbury unreasonable". By that he meant, I believe, that it was: -

This because matters in dispute relevant to the exercise of discretion to make a demolition order were not susceptible of satisfactory resolution in the absence of oral evidence and argument; particularly in the context of danger.

6. To allow our interference with the orders made by the judge, also in the exercise of discretion, we would have to be satisfied that he erred in law or in principle, acted under a misapprehension as to the facts, took irrelevant matters into account or made an order unjust in its effect. Despite all that has been urged upon us by Miss Hartstein on behalf of the members of the Tribunal, in relation rather more to the Judge's phraseology than to his conclusions, I am not satisfied in any of these respects. This does not mean that the Tribunal, in appropriate circumstances and insofar as the legislation meets the requirements of the Bill of Rights Ordinance, may not refuse an oral hearing where it is apparent that an ostensible dispute as to matters of fact is without substance.

7. It is necessary now to return to the notice of appeal given to the Director and to rule on a question raised by this Court. To quote the learned judge: -

"No point that the appeal was out of time has been taken".

That did not, in my opinion, suffice to confer jurisdiction upon the Tribunal unless the requirement that a person giving notice of appeal relating to a decision of the Building Authority "shall, within 3 weeks of such decision give notice in writing" be directory rather than imperative. As Lord Penzance explained in Howard v Bodington (1877) 2 PD 203 at p 210: -

"Now the distinction between matters that are directory and matters that are imperative is well known to us all in the common language of the courts at Westminster. ... A thing has been ordered by the legislature to be done. What is the consequence if it is not done? In the case of statutes. that are said to be imperative, the courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the courts hold a provision to be ... directory, they say that, although such provision may not have been complied with, the subsequent proceedings do not fail."

These words were cited by Lord Denning MR in Howard v Secretary of State for the Environment [1975] 1 QB 235 at p 241 with reference to a notice of appeal against an enforcement notice under s 16(1) of the Town and Country Planning Act 1968. On the following page he continued: -

"In applying that distinction, I must draw attention to a case which was decided on s 33 of the Caravan Sites and Control of Development Act 1960 ... A written notice of appeal was given in due time. It set out two grounds of appeal. Neither ground was substantiated. But, before the hearing, the appellant (long after the time for appeal had expired) submitted a further ground of appeal. The Minister allowed this ground to be raised and he allowed the appeal. The local planning authority urged that the Minister ought not to have considered this further ground They said that the section. was imperative. But the Divisional Court ruled that it was not imperative, but only ... directory. So it was open to the appellant to go further into the further ground although it was out of time and had not been contained in the original notice.

I think that decision was perfectly correct. ...

The section is no doubt imperative in that the notice of appeal must be in writing and must be made within the specified time. But I think it is only directory as to the contents."

The reasoning of Stamp LJ, on p 243, would seem to apply, mutatis mutandis, to the circumstances of the instant case with "paragraph 1(1) of the First Schedule" substituted for "section 16(1)": -

"The purpose of imposing a limitation of time in s 16 (1) is ... to prevent steps to enforce the enforcement notice being carried out before the time. fixed has expired. The machinery' of the enforcement provisions and the appeal. therefrom simply would not work unless there was some fixed time put in s 16(1) to limit the time in which an appeal is to be brought. That provision is therefore imperative ... and a failure to appeal within the time there limited clearly goes to the jurisdiction."

Here it is appropriate to quote s 45 of the Buildings Ordinance which, subject to a proviso, states :-

"Where the Building Authority is given notice of appeal in the manner prescribed in the First Schedule he shall not carry out nor permit the carrying out of the decision to which such appeal relates until such appeal has been determined..."

8. In Devan Nair v Yong Kwan Teik [1967] 2 AC 31 at p 44 the need for a speedy determination of the matter in controversy was stated by the Privy Council to be an important element in finding a statutory provision governing the time for service of an election petition imperative rather than discretionary.

9. I find that the time limit for giving a notice of appeal under para 1 of Schedule I of the Buildings Ordinance is imperative, that it could not be waived by the Director and that, in consequence, all subsequent proceedings under the ordinance have been void. I would therefore allow the appeal and discharge the orders made on 7 February 1991.

Sir Derek Cons, V-P:

10. I agree with my Lord that the appeal should be allowed, that the order of Bokhary J on 7 February be set aside and for the reasons that he has given in relation to the two issues that have been canvassed in this appeal. I only wish to emphasise one point. We understand from miss Hartstein counsel for the Appeal Tribunal that this appeal was brought not really to question the actual decision of the judge but from anxiety that comments made by him in the course of giving his reasons might be taken as binding principles of law which would, in the view of the Appeal Tribunal, make their work untenable or at least unduly difficult. For my part, I do not read the judge's words in that light, out only by way of explanation of his decision in the particular circumstances of the instant case.

Clough, JA:

11. I agree with the judgment delivered by Kempster JA and, with respect, associate myself with the observations which have been added by my Lord the Vice-President. I have nothing which I can usefully add.

Representation:

Miss V. Hartstein (AGC) for Respondent/Appellant

A. Ismail (M/s Kao Lee & Yip) for Applicants/Respondents