Yield-the-best Ltd v. Secretary for Transport and Housing
Read the full judgment text of LDMR 1/2021 on BabelCite. This LDMR judgment was delivered on 28 March 2023.
1. This is an application for determination of the amount of compensation payable for the resumption of land under the Roads (Works, Use and Compensation) Ordinance, Cap 370 (“the Ordinance”).
Cites 24 cases
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LDMR 1/2021 [2023] HKLdT 44 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS REFERENCE APPLICATION NO 1 OF 2021 _________________
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_________________ J U D G M E N T _________________ Background 1.This is an application for determination of the amount of compensation payable for the resumption of land under the Roads (Works, Use and Compensation) Ordinance, Cap 370 (“the Ordinance”). 2.On 31 December 2015, pursuant to section 13 of the Ordinance, the Government announced that the Remaining Portion of Lot No 2835 (portion), the Remaining Portion of Lot No 2848 (portion), Lot No 2858 (portion) and the Remaining Portion of Lot No 2859 (portion) all in Demarcation District 51 (“DD 51”) which are collectively referred to as the “Resumed Land” shall be resumed and reverted to the Government to facilitate the building of the Fanling Bypass (“the Bypass Construction”). 3.The applicant was then the registered owner of the original lots, i.e. the Remaining Portion of Lot No 2835 (“Lot 2835 RP”), the Remaining Portion of Lot No 2848 (“Lot 2848 RP”), Lot No 2858 (“Lot 2858”) and the Remaining Portion of Lot No 2859 (“Lot 2859 RP”) hereinafter collectively referred to as the “Subject Lots”. 4.By Government Gazette Notice No 5965 (“GN 5965”) dated 26 September 2019, the Government ordered the resumption of 1,779.8 sq m of the Subject Lots. 5.On 27 December 2019 (“the Date of Reversion”), ownership of the Resumed Land reverted to the Government. 6.On 14 July 2021, the applicant filed its Notice of Application seeking compensation for, inter alia:
7.By virtue of item 1 of Part II of the Schedule to the Ordinance, where land is resumed under section 13 of the Ordinance, the basis on which compensation is to be assessed is “as if the claim were made under the Lands Resumption Ordinance, Cap 124 (“LRO”) for land resumed under that Ordinance”. 8.Therefore the compensation for the resumption of the Resumed Land is to be assessed under section 10(2)(a) of the LRO which provides that it should be made on the basis of “the value of the land resumed and any buildings erected thereon at the date of resumption”. 9.Determination of the compensation under LRO is also subject to the following additional rules under section 12 thereof:
Expert and factual evidence 10.On the amount of compensation, the applicant relied on the valuation evidence of its expert, Ms Serena S W Lau (“Ms Lau”) of RHL Surveyors Limited who had prepared the following:
11.The respondent, on the other hand, relied on the valuation evidence of Ms Ng Hung Mui (“Ms Ng”) of LCH (Asia-Pacific) Surveyors Limited who had prepared the following:
12.Ms Lau and Ms Ng had also prepared the following Joint Expert Statements:
13.As submitted by the applicant, while both valuation experts agreed to value the Resumed Land as at the Date of Reversion, the difference in the respective experts’ valuation was huge. Ms Lau’s valuation was roughly between $71.8 million and $127.1 million whereas Ms Ng’s valuation was roughly $11.6 million. 14.As shall be elaborated below, the huge difference in valuation arose, we find, largely owing to whether or not the Resumed Land should be valued with temporary structures erected thereon, on which issue the parties and their experts differ from one another. 15.The applicant also relied on the evidence of three factual witnesses, Mr Chik Poon Ho (“Mr Chik”), Mr Chan Hoi Yuen Peter (“Mr Chan”) and Mr Lui Yue Yun Gary (“Mr Lui”), whose witness statements are, as agreed by the parties, admitted into evidence without cross-examination by the respondent. 16.At trial, Mr Victor Dawes SC (“Mr Dawes”), leading Ms Anna Chow and Mr Adrian Kwan, represented the applicant. Ms Ebony Ling (“Ms Ling”) acted for the respondent. The Subject Lots Before and After Resumption 17.The Subject Lots are located to the east of Ma Wat River and Wong Kong Shan, to the west of Tong Hang, an existing village in Fanling, and to the north of Fanling Highways in the Fanling district in the New Territories. 18.They are situated on the urban-rural fringe which is just at the entrance of Tong Hang. To the immediate east is a cluster of village houses including the Cyber Domaine and Wing’s Villa, while to the immediate north across the unnamed access road is a brownfield site. 19.To the west of the Subject Lots is the Fanling Town with On Lok Tsuen Industrial Area just across the Ma Wat River. Further to the west is the Fanling Station with residential developments and commercial facilities in the surroundings. 20.The Subject Lots comprise altogether a large piece of “L-shape” land with an agreed land area of 4,601.1 sq m of which 1,779.8 sq m had been resumed, leaving 2,821.3 sq m[1]:
21.We accept from Mr Lui, the Director of the applicant, that the applicant is a limited company incorporated in Hong Kong in June 1989. The applicant was owned by him and Koon Wah Metal Company Limited (“Koon Wah”) in equal shares[2]. It acquired the Subject Lots on or about 11 October 1989 for the operational needs of Pacific Marble & Granite (Hong Kong) Limited (“Pacific Marble”) which was then also jointly owned by him and Koon Wah in equal shares[3]. The core business of Pacific Marble is the supply and installation of marble and granite imported for commercial and domestic projects in Hong Kong and the People’s Republic of China (“PRC”). 22.According to Mr Lui, whose evidence in this paragraph we accept, immediately prior to the acquisition by the applicant, the Subject Lots were then used by the predecessor in title for his animal feed production and storage business. There was some one-storey temporary structures already erected thereon covering more than 1,100 sq m. Electricity and water supply were already in place. There was in fact also a fully functional office area, equipped with air-conditioners, of about 2,000 sq ft in size for about 20 staffs. 23.After the acquisition of the Subject Lots by the applicant, Mr Lui had, we also accept from him, reinforced the boundary fence and also paved the entirety of the Subject Lots with concrete to facilitate the entry and exit of trucks transporting marble and other building materials. Pacific Marble’s staffs, including Mr Lui himself, also used the office area for its daily business operation. 24.Insofar as the Subject Lots are held from the Government on Block Crown Lease (“the Government Lease”) which restricted user to agricultural or garden ground without any building[4], looking at his witness statement, Mr Lui admittedly understood from the predecessor in title that there was a waiver from the Government to use the temporary structures thereon (“Pre-Existing Structures”) for the manufacturing of animal feeds. 25.Shortly after the applicant’s acquisition of the Subject Lots, Mr Lui alleged in his statement that he had applied for a change of user in the waiver letter from animal feeds to marble cutting operation. But owing to the objection of local villagers, such application was, he said, not approved. 26.Notwithstanding rejection of his alleged application, Mr Lui further alleged that an officer of the Lands Department had told him that the applicant may continue its marble cutting operation in those structures and that no enforcement action would be undertaken unless there is a complaint[5]. Having regard to the unambiguous contrary contents of the 1991 Termination Notice below and of DLO’s rejection letter to the 2001 Amended Waiver Application below, we decide to give no weight to this bare allegation of Mr Lui. In any event, Mr Lui was never advised that there would be no enforcement action at all in the future. 27.Then in or about October 1995, because of a change in modus operandi when Pacific Marble was sold off to an investor[6]. Pacific Marble acquired its own office premises in Lockhart Centre in Wan Chai and its storage and marble cutting operation were relocated to PRC. The applicant then decided to lease out the Subject Lots on “as is” basis to earn regular rental income, with Koon Wah handling the leasing matters relating to the Subject Lots[7] (Koon Wah ceased to be a shareholder of the applicant since 2010[8]). 28.Ever since the Subject Lots were let out by the applicant after 1995, they had been notionally divided into Portion A and Portion B, each having two major vehicular access points for trucks and containers. Mr Lui estimated in his witness statement that the 1,100 sq m odd of the temporary structures were located on Portion A only and that Portion B was basically bare land save about 102 sq m of the original structure thereon. 29.From December 2015 and 2013, the applicant, we accept, had continuously let out Portion A and Portion B to the same 2 tenants i.e. Man Young Industrial Limited (“Man Young”) and Hong Kong Ocean Logistics Limited (“Hong Kong Ocean”) respectively. 30.The latest tenancy agreements the applicant had entered with the aforesaid 2 tenant companies and their particulars are as follows[9]:
31.As the proposed Fanling By-pass pursuant to which the Resumed Land was resumed will run from north to south directly bisecting the Subject Lots, the area of the Residual Land becomes as follows:
32.Mr Chan, the majority shareholder and director of Man Young, alleged that, owing to the resumption, the area occupied by Man Young i.e. Portion A would be substantially reduced and could not meet his operational needs as a rental area of gondolas. Man Young therefore, he claimed, moved out from Portion A in or about the end of October 2020 to No 50, Yim Tso Ha, Sha Tau Kok, New Territories[15]. 33.As for Portion B, upon the expiry of its tenancy agreement over the same in January 2021, Hong Kong Ocean agreed to use the land on a month-to-month basis at a reduced monthly rental of $150,000. 34.While Mr Chik, the majority shareholder and director of Hong Kong Ocean, complained in his statement that Hong Kong Ocean had to continue the storage business on a much smaller site and lost the use of the main entrance[16], we found otherwise during our joint inspection on 28 March 2023 that Portion B still retains a wide entrance and was readily accessible, for instance, by a 90-tonne truck going inside the premises. 35.We further agree with Ms Ng’s observation as stated at §17.2 of her Expert Report dated 8 February 2022 that:
Government Lease and Zoning pertaining to the Subject Lots 36.There is no dispute between the parties that the Government Lease which governs all land granted in DD 51 including the Subject Lots contains the following terms:
37.Notwithstanding the reversion of the sovereignty of Hong Kong to PRC in 1997, by virtue of sections 6 and 7 of the New Territories Leases (Extension) Ordinance, Cap 150, such Block Crown Lease has been automatically extended beyond 1997 subject to the same encumbrances and interests as applied immediately before the period of extension, except the reservation of and covenant to pay rent. 38.On the other hand, in Attorney General v Melhado Investment Ltd [1983] HKLR 327, the Court of Appeal decided in March 1983 that descriptions such as “agricultural or garden ground” under the User Covenant of a Block Crown Lease are merely descriptive and should not be construed to limit the use of the land. The effect of this is that lots demised for “agricultural or garden ground” under a Block Crown Lease can be employed for uses such as open storage of containers, vehicle, and scrap yard (“Melhado Uses”) so long as no structures are built thereon in breach of the Building Covenant. See also Anderson Asphalt Ltd v Secretary for Justice [2010] 5 HKLRD 490 at §§12-13. 39.When the applicant acquired the Subject Lots in October 1989, there was no Outline Zoning Plan nor statutory town plan covering the Subject Lots. 40.However, as at the Date of Reversion, the Subject Lots were zoned as “Recreation” (“REC”) on the approved Lung Yeuk Tau and Kwan Tei South Outline Zoning Plan (“OZP”) No S/NE-LYT/17. The “REC” zoning for the Subject Lots first came into force as from the publication of OZP No S/NE-LYT/1 on 1 July 1994 and it remains so zoned under the current OZP. 41.By virtue of section 12(aa) of LRO as afore-mentioned, such “REC” zoning which falls within section 4(1)(d) of the Town Planning Ordinance, Cap 131, shall not be taken into account in the determination of the compensation to be paid under this Ordinance. Thus, the Melhado Uses that are open to the Subject Lots, if it is possible to be put in reality, prevail[17]. History of the Structures Erected on the Subject Lots 42.There is no dispute that various temporary structures had been erected on the Subject Lots at different times, including but not limited to the Pre-Existing Structures erected by the applicant’s predecessor(s)-in-title prior to 1989. 43.On or around 11 March 1981, the District Land Office, North (“DLO”) granted a Short Term Waiver to the predecessors of the applicant to permit the use of portion of Lot 2848 RP for “the purposes of animal and poultry feed stock mill and godown only” (“1981 Short Term Waiver”). The 1981 Short Term Waiver expressly provided that:
44.In fact, by a letter from DLO to one Holkar Company Ltd c/o Perfect Marble dated 1 August 1991, the 1981 Short Term Waiver was terminated with effect from 31 October 1991 (“the 1991 Termination Notice”). By the penultimate paragraph of the 1991 Termination Notice, the recipient was specifically “required to revert the use of [portion of Lot 2848 RP] to agricultural purpose on the date of termination of the Waiver. If [it] fails to do so, the Lot(s) will be subject to re-entry pursuant to the terms of the lease under which the said lot is held[19]”. 45.By a letter from the applicant to DLO dated 12 August 2000, the applicant applied in respect of Lot 2835 RP, Lot 2848 RP, Lot 2858 and Lot 2859 RP for a short term waiver of the restriction in the Government Lease to use the lots for the purpose of agriculture so as to permit the erection of structures for the use of the same for “General Storage/Godown and Ancillary Office” (the “2000 Waiver Application”) 46.In the above letter, the applicant had referred to the previous 1981 Short Term Waiver over portion of Lot 2848 RP. According to Drawing No NDX 148A dated 30 December 1980 in relation to the previous 1981 Short Term Waiver (“1980 Waiver Plan”)[20] the bulk of the Pre-Existing Structures were erected on the resumed portion and the un-resumed portion of Lot 2848 RP within Portion A. 47.Looking at Mr Lui’s estimates in his witness statement, the applicant suggested few changes in the temporary structures standing on the Subject Lots up to at least the early 2000s:
48.By a letter from the applicant to DLO dated 15 November 2000, the applicant clarified for the 2000 Waiver Application that no medical, toxic, dangerous, inflammable or dangerous goods would be stored[21]. 49.By a letter from the applicant to DLO dated 6 February 2021, the applicant amended the 2000 Waiver Application such that its application related only to Lot 2835 RP and Lot 2848 RP and that an ancillary watchman quarter would be added (the “2001 Amended Waiver Application”)[22]. 50.By a letter from DLO to the applicant dated 25 May 2001, the Government rejected the 2001 Amended Waiver Application and advised the applicant to demolish all non-agricultural structures on the respective lots and reminded the applicant that the government will consider taking enforcement action[23]. 51.By two warning letters issued by the Government to the applicant (copied to occupiers and applicant’s mortgagee bank) in relation to Lot 2835 RP and Lot 2859 RP respectively on 2 December 2016 (“the 2016 Warning Letters”), the Government reminded the applicant that the unauthorized structures erected on the respective lots constituted a breach of the conditions in the Government lease and required the applicant to purge the breach (by demolishing or removing the said structures) within 28 days. 52.The government further said in the 2016 Warning Letters to the applicant that the duplicate of the said letters will be registered in the Land Registry should the breach be not purged (their duplicates were in the end registered on 10 May 2017), that the government reserved its right to take further lease enforcement action against the applicant as it deems appropriate and that a further inspection will be made to ascertain if the said letters had been complied with. 53.By a letter from the applicant to DLO dated 6 May 2017, the applicant applied in respect of Lot 2835 RP and (sic) Lot 2859 RP[24] for, among others, a short term waiver of the restriction in the Government lease so as to permit the existence of certain structures on the said lots for logistics business (the “2017 Waiver Application”). The applicant in the said letter referred to inspection by staff of Lands Department and their demand for demolition of unauthorized structures. Mr Lui in his witness statement dated 3 March 2023 conceded that the reason for making this waiver application might be in response to a request from the staff of the Lands Department for demolition of the temporary structures erected by the tenant on Portion B[25] and we so find. 54.By a letter from DLO to the applicant dated 20 June 2017, DLO requested the applicant to provide relevant documents/information for consideration of the 2017 Waiver Application and reserved its right to take enforcement action for any breach of lease conditions. 55.By a letter from DLO to the applicant dated 10 August 2017, DLO informed the applicant that the 2017 Waiver Application could not be processed because the applicant had failed to provide the requested documents/ information. By the same letter, DLO had again reserved its right to take lease enforcement action for any breach of the Government lease. Applicant’s Assessment taking into account Structures Erected on the Subject Lots 56.Ms Lau had prepared compensation assessments on the basis of 4 different scenarios which turned on the discrepancies in measurements of the temporary structures:
57.However, no matter which scenario was adopted, it had been the case of the applicant that the value of the temporary structures erected on the Subject Lots had to be taken into account. The respondent did not agree and contended otherwise. Principle of Equivalence 58.The applicant submitted that the Government’s stance above has failed to reflect the “real value” of the Subject Lots at the time of resumption as it deliberately ignored the significant increase in value caused by the Pre-Existing Structures. It is submitted that section 12(b) of the LRO derogates from the benchmark of open market valuation under section 12(d) of the LRO, upon which full and fair compensation is to be normally assessed. 59.At the forefront of the applicant’s submissions are that any person whose property is compulsorily acquired has a right to full and fair compensation under Article 105 of the Basic Law: Director of Lands v. Yin Shuen Enterprises Limited & Another (2003) 6 HKCFAR 1 (“Yin Shuen Enterprises”), §§1 & 55. No compensation for non-conforming use under LRO 60.But, in Yin Shuen Enterprises, the Court of Final Appeal had, we note, also decided as follows:
61.Hence, the Court of Final Appeal had affirmed in Yin Shuen Enterprises that sections 12(b) and 12(c) of the LRO are both in derogation of section 12(d). And in determining the amount of compensation payable on resumption, the value of the land must be taken to be its value subject to the restriction of the Government Lease. 62.The Court of Final Appeal had also explained at §§56-57 of the judgment of Yin Shuen Enterprises that such requirement under the LRO is compatible with the “real value” as stated in Art 105 of the Basic Law:
63.That the open market value of land under section 12(d) should be subject to section 12(c), and likewise section 12(b), was re-affirmed by the Court of Final Appeal in Dragon House Investment Ltd & Another v Secretary for Transport & Another (2005) 8 HKCFAR 668 at §§11 & 14. 64.Both decisions of the Court of Final Appeal above are, of course, binding on us. Hence, if sections 12(b) and 12(c) of LRO are to be applied in this case, we would agree with the respondent that the value of the temporary structures erected on the Subject Lots is to be disregarded. 65.In this case, the applicant advanced 2 reasons to suggest why section 12(b) of the LRO is not triggered. Paragraph 5 in Part 1 of Schedule to the Ordinance 66.Firstly, the applicant pointed to section 38(a) of the Ordinance, which reads: “Except to the extent that provision is otherwise made in this Ordinance – (a) the Lands Resumption Ordinance (Cap.124) shall not apply to the resumption of any land ordered under section 13 nor to any claim for or determination, award or payment of compensation for such resumption”, and section 27(1) of the Ordinance[26]. 67.The applicant next pointed to paragraph 1 in Part 1 of the Schedule to the Ordinance which reads:
68.The applicant then moved to, and relied on, paragraph 5 in Part 1 of the Schedule to the Ordinance (“Paragraph 5”) which states that:
69.The applicant referred to Land Compensation & Valuation Law in Hong Kong by Gordon N Cruden and Liza Jane Cruden, 4th (2017) Edition, where the learned authors commented on Paragraph 5 at §20.50 as follows:
70.Comparing the imperative word of “shall” found in s.12(b) of LRO against the permissive word of “may” found in Paragraph 5, the applicant stressed that there is nothing in the latter that requires this Tribunal to give “blanketed disregard” for any non-conforming structures that enhance the value of the Subject Lots. 71.Paragraph 5, the applicant accordingly submitted, is inconsistent with and prevails over section 12(b) of LRO. Hence, section 12(b) of LRO, the applicant argued, has no application to any assessment of compensation under the Ordinance, which adopted unique principles of compensation that exclude compensation limitations in both sections 11 and 12 of LRO. 72.Moreover, whether or not the value of the Subject Lots should be reduced at all (and even if so, to what extent) is a matter for the Tribunal’s discretion. To maintain compatibility with the Basic Law when exercising its discretion under Paragraph 5 above, the Tribunal should, the applicant argued, award no less than the “real value” of the resumed land. In the absence of clear language, Paragraph 5, it was argued, should not be construed as an interference with a person’s right to full and fair compensation for deprivation of property. In any event, the fact that Government had failed to take enforcement action for non-conforming structures on the Subject Lots from 1991 to date makes it “just and equitable” not to deduct such enhancement of land value attributable to these structures. 73.In response to applicant’s reliance of Paragraph 5, Ms Ling first submitted that Paragraph 5 is not inconsistent nor conflict with 12(b) of the LRO for the following reasons:
74.Ms Ling further submitted that, if the legislative intention of enacting Paragraph 5 is to carve out an exception to the general rule under section 12(b) of the LRO, one would expect clear and unequivocal wordings to such effect under the Ordinance. 75.It is Ms Ling’ submissions that, after compensation for land resumed having been assessed pursuant to all the principles set out under LRO, including applying section 12(b) thereof disregarding any use not in accordance with the Government Lease, Paragraph 5 further allows the Tribunal to reduce the compensation so assessed in respect of any building works which have been carried out in contravention of the Buildings Ordinance or the Government lease. 76.Compensation may have, Ms Ling submitted, to be reduced when land is resumed under the Ordinance because the Government would necessarily have to demolish all existing structures on the land resumed to make way for roads to be built under the Ordinance. Thus, if any building works on the land resumed is unlawful, Paragraph 5 has the effect of reallocating the costs of demolishing such unlawful building works on the previous land owner[27] who has built the same in contravention of the Buildings Ordinance or the Government lease. 77.It would, Ms Ling submitted, be impossible for the Tribunal to decide how much compensation is to be “reduced” for unlawful building works still “existing” on the land resumed. What are to be “reduced” must, she argued, be the demolition costs of these works. That also explains why similar paragraph 5 also appears in Part II of the First Schedule of the Mass Transit Railway (Land Resumption and Related Provision) Ordinance, Cap.276 (enacted in 1974), and Part I of Schedule of Railways Ordinance, Cap.519 (enacted in 1997). 78.In support of her construction of Paragraph 5, Ms Ling reminded this Tribunal of the following principles of statutory interpretation by reference to Feldman, Bailey & Norbury, Bennion, Bailey and Norbury on Statutory Interpretation, 8th Edition.
79.In further support of her submissions, Ms Ling quoted Paper for the House Committee meeting on 16 May 1997, Report of the Bills Committee on the Railways Bill, where it was reported at §3 of p.1 that “The Bill is modelled on [the Ordinance] with modifications to speed up the land resumption process” and at §8 of p.3 that:
80.Further, at the Second Reading of the Railways Bill on page 81 of the Official Record of Proceedings of the Legislative Council on 4 June 1997, it was reported that
81.Ms Ling therefore submitted that the Legislature must have intended that the principles for assessing compensation under all the above ordinances should be consistent and in line with that under the LRO. 82.It would, Ms Ling argued, be most arbitrary and unfair that, for the same piece of land, compensation would not be given for enhanced value of unauthorized building works thereon if it is resumed for a public purpose under the LRO but that compensation would only be reduced for the said works if it is resumed under the Ordinance for building roads (another public purpose). 83.Like what the Tribunal (differently constituted[30]) had found similar ground of review (failing to give due regard to similar paragraph 5 of the Schedule to Railways Ordinance) put forward to seek compensation for loss of construction and site improvement works in contravention of block government lease[31] at §6.2[32] of its decision of review in Hon Mei Hing trading as Wing Tat Iron and Steel Engineering v The Secretary for Transport, LDMR 19/2000 (unreported, dated 30 November 2001), we “cannot see how [Paragraph 5] can be of any assistance to the [applicant]” in the present case either. 84.Despite the great experience of H H Judge Cruden in this field, we do not think that observations made in his book and relied upon by the applicant can stand against the purpose, text and context, of LRO, the Ordinance and the like, the authority of Hon Mei Hing, supra, not referred to or considered by him in his book and other considerations we refer below. 85.To start with, item 1 in Part II of Schedule of the Ordinance allows, we think, all LRO provisions, including s.12(b) thereof, to be applied in assessing compensation for land resumed under s.13 of the Ordinance by using the words “as if the claim were made under LRO for land resumed under that Ordinance (italics supplied)”. 86.In our views, Ms Ling was right to submit that, on its proper construction, Paragraph 5 is an additional provision to be applied pursuant to paragraph 1(a) of Part I of the Schedule of the Ordinance after one applies all LRO provisions, including s.12(b) thereof, to assess compensation of land resumed under the Ordinance pursuant to Part II of the Schedule of the Ordinance. 87.This interpretation of Paragraph 5 above is supported further, we believe, by paragraph 6 in Part 1 of the Schedule to the Ordinance that followed whereby “(t)he compensation assessed under item 6 or 7 of Part II of this Schedule shall be reduced to such extent as may be just and equitable having regard to the share in the responsibility for the loss or damage not reasonably attributable to or connected with the works.” 88.In other words, we are in complete agreement with Ms Ling’s submissions that Paragraph 5 is not inconsistent nor conflict with s.12(b) of LRO and that it never prevails over the latter. We disagree with applicant’s submissions to the contrary. 89.In making its submissions at §70, the applicant was, we believe, over-emphasizing the respective application of s.12(b) of LRO and Paragraph 5 to the facts and circumstances of the present case. Due to the restrictive covenants in the Government Lease and lack of building approval given to structures erected thereon, s.12(b) of LRO applies to oblige this Tribunal to disregard any enhanced value of the Resumed Land due to these structures while Paragraph 5, the applicant argued, also applies to allow compensation to be reduced in respect of these unlawful structures in contravention of the government lease such that the applicant could allege that there is conflict or inconsistency between the two. 90.Depending on the different facts of other cases, users of land resumed may, we imagine, be in accordance with the terms of the government lease such that s.12(b) of LRO does not apply but that buildings may have been constructed thereon in contravention of government lease and/or Buildings Ordinance such that Paragraph 5 applies (or it could be the other way round). In such different scenarios, there could not, we think, be any inconsistency or conflict between the two as alleged by the applicant. 91.Ms Ling’s submissions at §73 focus, we believe, more on the wordings on s.12(b) of LRO and that of Paragraph 5 and she had rightly compared their different wordings. Her submissions accord, we believe, more in line with paragraph 1(b) in Part I of the Schedule to the Ordinance, where the emphasis is, we think, on inconsistency or conflict between “provisions” and not in their application. 92.Indeed, considering their respective different purposes, context and text, we think that s.12(b) of LRO and Paragraph 5 are enacted to deal with different subject matters and, as such, there could not be any conflict or inconsistency between these two provisions as alleged.
93.On top of provisions similar to Paragraph 5 found in Railways Ordinance i.e. Cap.519 (enacted in 1997) and, arguably, its MTR predecessor i.e. Cap.276 (enacted in 1974) [33], other paragraphs similar to Paragraph 5 are, we notice, also found in: -
Lest it be forgotten, the Ordinance was enacted in 1982[36]. 94.The above 5 ordinances enacted at different times all, we note, involve land resumption for public purpose of one sort or another and assessment of compensation under LRO thereafter. Were applicant’s submissions correct, we completely fail to discern (and none was suggested by the applicant to explain) why s.12(b) and s.12(c) of LRO (which were respectively introduced in 1921[37] and 1922, both of them having apparently served Hong Kong well since then) were discarded at different times since 1974 (or 1982)[38] in specific instances of “public purpose” resumption ordinances in favour of Paragraph 5 and similar paragraphs that allow the previous land owners to profit from his/her own wrongs and/or that of his/her predecessor(s) in respect of unlawful building works. 95.With respect, applicant’s submissions of Paragraph 5 fall foul of all 3 principles of statutory interpretation Ms Ling had referred us to and they produce absurd and arbitrary distinctions that are vividly illustrated by the example she gave at §82. Indeed, we could imagine even more bizarre example when the Ordinance and LRO are both employed together in one single large redevelopment project consisting of building new roads and buildings on lands resumed. 96.In so far the applicant falls back on the principle of equivalence to justify alleged unique status of Paragraph 5, we would reiterate and emphasize that, as was explained in Yin Shuen Enterprises, the general law before enacting s.12(c) (and, indeed, s.12(b)[39]) of LRO has always been that, in case of resumed land subject to restriction as to user which affects its value, the claimant is not entitled to be paid its unrestricted value. In such cases, the right to develop the resumed land without restriction, as was stressed by Ms Ling, always belongs to the government and has never been disposed of. Section 12 of LRO is, we would point out, perfectly in line with such division of ownership as between parties to a government lease under the general law. With respect, the principle of equivalence does not, we think, assist the applicant to justify Paragraph 5 as alleged. 97.Mr Dawes has helpfully reminded the Tribunal well-settled principles of statutory construction by reference to several Court of Final Appeal decisions[40]. We have borne these principles in mind in approaching the parties’ submissions on Paragraph 5. We are acutely aware that we cannot construe statute purely for the sake of achieving “desirable” public policy. Our task is to give effect to the legislative intent as expressed by the words of the statute book in their proper contexts within permissible bounds of interpretation. A purposive approach does not allow us to disregard or distort the plain meaning of the text and read the provisions in any manner we want. 98.All things considered, we are satisfied that Ms Ling’s construction of Paragraph 5 at §76 and §77 give full effect to the intention of the legislature. Considering their meanings in their proper context, including the general law of resumption and other similar resumption ordinances, Paragraph 5 could, and should, be read in the way she suggested. 99.For the above reasons, s.12(b) of LRO remains, we think, applicable in the circumstances of the present case notwithstanding the presence of Paragraph 5 in the Ordinance. Abandonment of Restrictive Covenants 100.In a second attempt to overcome section 12(b) of LRO, the applicant relied on Cheermark Investment Limited & Another v Director of Lands [2018] 1 HKLRD 79 (“Cheermark Investment”) where Kwan JA (as she then was) held as follows:
101.More particularly, the applicant suggested the Government is barred from relying on section 12(b) of the LRO as it had knowingly abandoned the restrictive covenants by waiver or acquiescence by the Date of Reversion as was held in Cheermark Investment. 102.The applicant acknowledged that in order to show acquiescence, it must prove that:
103.In such regard, the applicant further relied on Attorney General of Hong Kong v Fairfax Ltd [1997] HKLRD 243 at 245I-246J and submitted that a covenant affecting real property could be abandoned if it had been openly and notoriously breached for a prolonged period say 20 years or more. On English case law, it was stressed by Mr Dawes that a prolonged period of breach for 25 years or more[41] will give rise to a presumption of abandonment: Hepworth v Pickles [1900] 1 Ch 108, 110 per Farwell J (24 years); and Gibson v Doeg (1857) 2 H & N 615, 623-4 per Pollock CB (20 years)[42]. 104.In the present case, the applicant developed its submissions in the following manner:
105.The applicant submitted that “boilerplate” warnings by the Government to the effect that enforcement action might be taken against the applicant for breaches of restrictive covenants are ineffective if the Government’s subsequent conduct or the lacking thereof enhances the impression that no enforcement action would be forthcoming. 106.In support of above submission, the applicant referred to Kwok Hon Shing & Others v Happy Team (China) Limited [2016] 2 HKC 482 as an analogy where the Tribunal found no waiver of the breach of a tenancy agreement in that case, citing Hong Kong Tenancy Law as follows:
107.The applicant further submitted that even if the factual circumstances are not sufficient to establish abandonment by waiver or acquiescence, the Tribunal should not reduce the level of compensation payable by Government to the applicant. 108.Ms Ling for the respondent disagreed with the applicant’s submissions above. 109.Ms Ling cited §4.45 of Wilken & Ghaly’s The Law of Waiver, Variation, and Estoppel, 3rd Edition, to submit that in order to succeed in a claim of waiver, a party must prove:
Further at §§6.29-6.30, it was stated that no waiver can arise as a result of a party’s mere silence or delay in making its election and that therefore acquiescence can be regarded as a form of estoppel. 110.Ms Ling submitted, as regards acquiescence, it arises where a person having a right, and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in such a manner as to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act: De Bussche v Alt (1878) 8 Ch D 286 at p314 per Thesiger LJ. 111.To succeed in a defence of acquiescence, it must be shown firstly, there was on the part of the plaintiff, an assent or lying by in relation to the acts of another person; and secondly, in view of the assent or lying by and consequent acts it is unjust in all the circumstances to grant the relief in question: The Incorporated Owners of Freder Centre [2016] 2 HKLRD 190, at §25 & 26 per Chu JA (as she then was). 112.Acquiescence is, Ms Ling stressed, defined by the conduct and belief of the representee, while the representee’s conduct and belief are irrelevant in cases of waiver. 113.Ms Ling, referring to §62 of Cheermark Investment, further submitted that there is an important distinction between (a) waiver of a breach of a covenant and (b) waiver of the covenant itself. A waiver of a covenant should not be lightly inferred but only where the conduct of the grantor is sufficiently clear and unambiguous that it would be inherently unfair for him to be permitted to go back on his word, either actually spoken or derived from his conduct. At §69 of Cheermark Investment, the Court of Appeal further held:
114.By reference to §§64-66 of Cheermark Investment, Ms Ling submitted that the facts as found by the Tribunal in Cheermark Investment are distinguishable from the present case. In that case, in light of the open and notorious breaches of using all ground floor units in the neighbourhood as shops over a very lengthy period (i.e. over some 50 and 75 years) without enforcement action nor issuance of warning letter, the Tribunal was satisfied that the Government had abandoned altogether its rights under the Government Lease as opposed to having acquiesced only in taking enforcement. 115.Ms Ling stressed in her submissions that the same cannot be said in the present case in terms of the magnitude and duration of the breach, as well as the conduct of the Government. 116.We would start off by noting that it had been said by Hong Kong courts that the English cases cited by Mr Dawes depended on the circumstances and conditions prevailing in England and Wales at the time of their decision, and that they should not be treated as offering guidance in the circumstances and conditions prevailing in Hong Kong: Fairfax Ltd v Attorney General [1995] 2 HKC 617, per Godfrey JA at 623B-D. The key is to apply their principles to the circumstances and conditions prevailing in Hong Kong or the facts of each case. 117.We next agree with Ms Ling that she was right to distinguish Cheermark Investment in the way she did. Indeed, Attorney General of Hong Kong v Fairfax Ltd, supra, is, we think, also distinguishable. In that case, over a long period of not far short of 40 years (from 1957 to 1992), multi-storey blocks have been built over virtually the whole of Lot 757 (i.e. not just plaintiff’s site) to transform 2 1/2 acres in area into an area of high-density high-rise buildings: Attorney General of Hong Kong v Fairfax Ltd, supra, 246C; Fairfax Ltd v AG [1995] 2 HKC 617, 619H-I, 622F-G, 623G, 625H, 627H, 628D-E. 118.In the present case, on the contrary, we observed that:
119.Judging from the above, we take the views (and agree with Ms Ling) that:
Structures erected on the Subject Lots are to be disregarded 120.In view of the above, we regret that all the 4 scenarios premised by Ms Lau are not supported and are incorrect for the purpose of the determination of compensation in the present case. Standalone Valuation of the Resumed Land 121.Whereas section 10(2)(a) of the LRO provides that the determination of compensation should be made on the basis of “the value of the land resumed and any buildings erected thereon at the date of resumption”, the applicant submitted that, because of the severance of the Subject Lots after the resumption, the amount of compensation payable for the Resumed Land should be arrived at by multiplying the unit rate of the Subject Lots as a whole against the area of the Resumed Land. 122.The applicant sought support in Section 3.10 of the Valuation Office Agency (England & Wales) Land Compensation Manual which provides:
123.The applicant further referred to Statutory Valuations, 4th Edition, 2007, by Andrew Baum, Gary Sams, Jennifer Ellis, Claire Hampson and Douglas Stevens at 273-274 which provides:
124.With respect, however, the above texts cited by the applicant were premised on Rule 2 in section 5 of the Land Compensation Act 1961. Rule 2 states:
which by itself or other rules in section 5 of the Land Compensation Act 1961 does not provide for any compensation for loss or damage suffered by any claimant due to the severance of the land resumed. The provision which in fact provides for the latter in in the United Kingdom is section 7 of the Compulsory Purchase Act 1965, which reads:
125.In contrast, under section 10(2)(c) of the LRO, there is a separate provision for “the amount of loss or damage suffered by any claimant due to the severance of the land resumed or any building erected thereon from any other land of the claimant, or building erected thereon, contiguous or adjacent thereto”. 126.Notwithstanding the above, in Ramac Holdings Limited v. Kent County Council [2014] UKUT 0109 (LC), there was a dispute between the parties on how the reference land compulsorily acquired but forming part of a larger site should be valued. The Upper Tribunal (Lands Chamber) ruled at §62 as follows:
127.This judgment was recently cited with approval by the Privy Council in Estate of Dame Bernice Lake QC (Deceased) and Another v Attorney General of Anguilla [2022] UKPC 33, [2022] RVR 355 where some 10 acres from a larger plot planned for the development of a tourist resort was acquired. There section 18(2) of the Land Acquisition Act of Anguilla provides that for assessment of compensation: “The value of the land shall … be taken to be the amount which the land, in its condition at the material time, might be expected to realise if sold at that time on the open market by a willing seller.” 128.While we consider such provision is comparable to section 12(d) of the LRO, the Privy Council in Lake QC (Deceased), supra, held at §71 that the Board of Assessment (“BoA”) on behalf of the Government of Anguilla did not go wrong in law by approaching the valuation exercise in relation to the 10 acre plot as it was directed to do by section 18 of the Act, so long as it was also prepared to consider the issues of compensation for severance and injurious affection of land retained by the landowner, according to the analogy with section 7 of the 1965 UK Act. The Privy Council continued at §74 as follows:
129.In the present case before us, although the Resumed Land constituted portion of a larger plot, i.e. the Subject Lots, the building of structures thereon prior to the resumption was, as found above, in breach of the Government Lease and should be disregarded in the determination of compensation. 130.Though the Resumed Land comprises as much as 1,779.8 sq m, the remaining land for Portion A and Portion B still comprises 956.0 sq m and 1,865.3 sq m respectively. That 1,779.8 sq m is not significantly below the area of 2,804 sq m at the northern fringe of Yuen Long Town resumed in Yuen Long Fish Merchant's Association Limited v Secretary for Transport, LDMR 44/2000 (unreported, dated 3 April 2001)[46] where compensation was assessed on the basis of an open car park, a Melhado use. 131.The present situation is, we think, different from cases in §123 where the resumption of development land would result in “the reduction of the unit may increase the costs per acre and reduce the value of the remaining land”. Neither is this a case where the claimant will be left with two parcels of land on opposite sides of the motorway or by-pass leaving one or both of the two parcels suffering extreme devaluation, due to its small size, lack of access, or its transformation to uselessness by means of its new awkward shape. 132.For all the above reasons, we have decided to determine the market value of the Resumed Land on a stand-alone basis as in Lake QC (Deceased), supra, and the applicant has failed to persuade us otherwise. Evaluation of expert evidence of Applicant’s expert 133.There was a general consensus between Ms Lau and Ms Ng that:
It is in fact the latter approach that had been adopted by Ms Lau. 134.Ms Lau initially proposed four comparables for the purpose of carrying out the income approach of valuation. But after the joint meeting with Ms Ng, Ms Lau agreed to drop her comparables T1, T2 and T3, leaving only T4, being Lot 2670 in DD102, which has a site area of about 730 sq m. In spite of this concession, Ms Lau proceed to value the Subject Lots by applying a conversion factor as much as 1.5 (ie +50% adjustment) to take into the account the area of some 263 sq m (ie 36%) covered with structure and decompose the transaction price of T4 at $10,000,000 into a unit value for the uncovered part (ie 135.Indeed, Ms Lau’s approach is analogous to the two-stage approach by taking the open market value land obtained by the use of comparables with structures thereon and attempting to quantify the element which must be disregarded in order to arrive at the value of the land subject to the no-structure restriction under the Government Lease. Such approach or the argument by the applicant that non-conformity with the Government Lease might not reduce any enhancement in land value attributable to any such non-conforming temporary structures was particularly ruled against by the Court of Final Appeal in Dragon House Investment, supra, at §48. 136.In any event, Ms Lau herself accepted that this comparable left is not a desirable comparable due to its relatively small size and poor accessibility[48]. Thus, all 4 income comparables T1, T2, T3 and T4 proposed by Ms Lau are also disregarded. In addition, the other only comparable relied on by Ms Lau i.e. R1 in carrying out her valuation[49] was conceded by her at trial that it was a transaction between connected parties and had to be disregarded. This left her with no comparable at all for the income approach. 137.Notwithstanding the above, Ms Lau agreed that, by reference to the Final Report of Study on Existing Profile and Operation of Brownfield Sites in the New Territories – Feasibility Study (“Brownfield Study”)[50], there had been a very diverse range of monthly rent for brownfield sites, going from a minimum of $0.9/square feet to a maximum of $22.2/square feet[51]. However, with respect, Ms Lau failed to distinguish the monthly rental between different uses of brownfield sites and the structures erected thereon, which, in our opinion, might be important in the analysis. The Brownfield Study was only a general study for the whole of the New Territories. We note that the logistics industry, for instance, which may require a larger proportion of covered structures, was able to pay the highest monthly rental from $2.0 to $22.2 whereas industries like rural industries and vehicle scrapping which may require minimal covered structures were paying the lowest monthly rental from $0.9 to $3.7 or $5.6 as the case may be. 138.In order to bypass the impasse, Ms Lau tried to make use of the prevailing tenancy information for Portion A and Portion B, presenting two simultaneous linear equations as follows[52]:
where the coefficients of x and y represent the roofed covered area and uncovered land area respectively. 139.By solving the simultaneous equations, Ms Lau arrived at the unit rate of roofed covered area (x) at $168.11 per sq m and the unit rate of uncovered land area (y) at $67.31 per sq m. Pausing here, Ms Lau’s analysis was contradicting her assumption of a conversion factor of 1.5 as stated in §134 above. 140.With respect to Ms Lau, we find her logic of the formation of the equations wrong. For instance, the figures of 1,084.56 was derived from the total size of temporary structures of 1,136.31 sq m minus 51.75 sq m of structures under the 2016 Warning Letters, ie 1,136.31 – 51.75 = 1,084.56. On the other hand, the figure of 1,005.44 was derived from the total area of Portion A at 2,089.88 sq m minus 1,084.56 but with the 51.75 sq m of structures under the 2016 Warning Letters thereon, i.e. the so-called uncovered land area was not really the case but with structures under the 2016 Warning Letters thereon. The tenant did not remove the unauthorized structures covered by the 2016 Warning Letters. 141.Moreover, the tenancy for $250,000 per month for Portion A was to commence on 1 December 2019, foreshadowed by the Date of Reversion. That is, very soon, Portion A was left with temporary structures of 644.91 sq m with uncovered land area of 956.0 sq m - 644.91 sq m = 311.09 sq m. Therefore, the equation, if it were to be adopted, should be rewritten as
142.Similarly, the figures of 213.49 was derived from the total size of temporary structures of 1,212.87 sq m minus 999.38 sq m of structures under the 2016 Warning Letters, ie 1,212.87 – 999.38 = 213.49. Again, the commencement of the tenancy of Portion B for paying $190,000 per month was 1 February 2020, i.e. even after the Date of Reversion. Then Portion B was left with structures having 626.13 sq m (inclusive of 414.88 sq m under the 2016 Warning Letters[53]). The uncovered area should therefore become 1,865.3 sq m - 626.13 sq m = 1,239.17 sq m. The equation, if it were to be adopted, should be rewritten as
143.Unfortunately, when the two simultaneous linear equations were rewritten as above, there would be no solution as the equations are illogical[54]. At least, the rental of $250,000 per month for Portion A was not reliable as disclosed by Mr Chan, who claimed that “the rental area would be substantially decreased after the resumption, it could not meet the operational needs of my business at Portion A[55]” and that Man Young “moved from Portion A into the Yim Tso Ha site in or about the end of October 2020[56].” The above claims contradicts with Ms Lau’ allegation at §2.5.3 of her Supplemental Expert Report dated 31 March 2022 that Man Young agreed to pay the same rental even though a substantial portion of land would be taken by the Government[57]. With respect, this allegation is also against common sense. 144.In any event, we should not rely on transactions (or rental) of the Subject Lots when the resumption itself was forthcoming. In Lam Kit v Director of Lands, LDLR 15/1994 (unreported, dated 5 May 1995), the Tribunal held at §11 as follows:
145.Similarly in Yuk Fong Investment Limited v Director of Lands, LDLR 1/2014 (unreported, dated 11 January 2016), the Tribunal held at §20 that “the effect or threat of a resumption scheme on pedestrian flow or the value of the Property should be disregarded.” 146.And more recently in Alliance Develop Limited v Director of Lands, LDLR 1/2020 (unreported, dated 20 February 2023) at §25, the same Pointe Gourde principle was applied:
147.In the present case, as stated in §2, the Government announced on 31 December 2015 that the Resumed Land shall be resumed from the Subject Lots to facilitate the Bypass Construction. The latest tenancy agreement for Portion A dated 29 November 2019 can be found at Appendix 10 of Ms Lau’s Expert Report dated 11 October 2021[59] or Appendix 1.3 of her Supplemental Expert Report dated 31 March 2022[60] (or Appendix 10 of Ms Ng’s Expert Report dated 8 February 2022)[61]. Of particular interest is clause 14 of the tenancy agreement which stated that even though the resumption was imminent, Man Young was prepared to pay the increased rental of $250,000 per month:
This is contradictory to the contents of witness statement of Mr Chan where he claimed “Since the rental area would be substantially decreased after the resumption, it could not meet the operational needs of my business at Portion A[62].” More particularly, Man Young saw fit to move away from Portion A to somewhere else in Yim Tso Ha in October 2020 more than 1 year prior to the end of the tenancy[63]. 148.Therefore, not only the latest tenancy for Portion A in December 2019 and the latest tenancy for Portion B in February 2020 should not, we think, be relied on for the purpose of determining compensation, even the earlier tenancies entered after 31 December 2015 were questionable for that purpose. 149.As well, as we have already formed the view that in the determination of compensation in the present case, all structures erected on the Subject Lots have to be disregarded, i.e. the determination of compensation would be on the basis no structures would be allowed on the Subject Lots as restricted by the Government Lease, it is doubtful in that scenario whether Man Young or Hong Kong Ocean would be attracted to the Subject Lots in the first place and pay substantial rental at all. 150.Thus the analysis carried out by Ms Lau as described above in her “fall-back scenario” as contained in her 3rd Supplementary Expert Report dated 9 March 2023 was faulty and had to be totally disregarded. 151.As such, we decide that we should as far as possible revert to the direct comparison approach. Evaluation of expert evidence of Respondent’s expert 152.As opposed to Mr Lau’s opinion, Ms Ng opined that there were suitable comparables for direct comparison in the determination of the market value of the Resumed Land. She relied on the four comparables below[64]:
153.According to Ms Ng, these comparables had no or minimal covered area by reference to the aerial photos taken around the date of the respective transactions. But as we shall see later in this judgment, the applicant contended that C4 had structures as much as 230 sq m (ie some 18%) by reference to the aerial photo taken on 17 July 2019, ie some 3 months after the date of its transaction. However, we do not find it of much importance. Firstly, 3 months could be a long enough period of time to erect temporary structures. Secondly, if Ms Ng was contented to adopt this as comparable although it had some 18% coverage, it would only work to the applicant’s advantage because we have already ruled that the determination under the Ordinance should be on the basis there would not be any structures erected on site. 154.Comparable C1 is located to the east of Shek Wu Wai and to the northwest of San Tin Barracks in the Yuen Long district. According to the aerial photo and by reference to the Brownfield Study as well as our joint site inspection on 28 March 2023, it occupies the rear portion of an enclosed site for brownfield operation. It is accessible via a single-lane local track leading more than 200 metres from the main road network of Ka Lung Road which is a local access connecting to Route 9 via Kwu Tung Road. We agree with Ms Lau’s comment that this is not a suitable comparable owing to its small size, inferior accessibility that has to pass through at least 6 private lots before reaching the site. It was assigned at $520 per sq ft, a usual round sum for sale of an “agricultural lot” in the New Territories. 155.Comparable C2 is situated just to the north of San Tin Barrack with a covered structure of about 33.45 sq m. Again, it is accessible via a local track leading some 150 metres from the main road network of Ka Lung Road. We agree with Ms Lau’s comment that this is not a suitable comparable owing to its small size and inferior accessibility. By virtue of the Agreement for Sale and Purchase dated 30 November 2020, its sale price was equivalent to a low of $350 per sq ft. We also have reservation on its reliability as comparable. 156.Comparable C3 is located in Pat Heung of the Yuen Long district. It is divided into two portions by a local track with Lot 823 Section A (“Lot 823 sA”) having 95.6 sq m and Lot 823 Section B (“Lot 823 sB”) having a larger area of 291.72 sq m. According to the aerial photo and by reference to the Brownfield Study, Lot 823 sA was used as a warehouse/ workshop[65] while Lot 823 sB was used for open storage as at the transaction date. While these sites are accessible via a local track leading some 200 metres from Fan Kam Road, a main distributor in the district, these sites form part of a larger area occupied for brownfield operation. We agree with Ms Lau that this is not a good comparable owing to its small size, separation into two portions and inferior accessibility that has to pass through more than 14 private lots before reaching the site. But it was assigned a more realistic rate of $800 per sq ft. In the absence of better comparables, we rely on it for the purpose of our evaluation. 157.Comparable C4 is located in Kong Nga Po, Hung Lung Hang of the North District. According to the aerial photo and by reference to Brownfield Study, the site was occupied together with Lot 537 Section B and Lot 537 Remaining Portion as a single brownfield operation. It is accessible by a narrow single-lane local track leading some 200 metres from the nearest main road network of Kong Nga Po Road which branches off from Man Kam To Road or Ping Che Road. We agree with Ms Lau that this is not a good comparable owing to its small size, inferior accessibility that has to pass through at least 13 private lots before reaching the site. By virtue of the Agreement for Sale and Purchase dated 26 April 2019, its sale price was equivalent to $800 per sq ft. But, in the absence of better comparable, we also rely on it for the purpose of our evaluation. 158.At trial, Ms Ng acknowledged that there were deficiencies in her proposed comparables but in her valuation exercise adopted the following adjustments:
159.As regards the adjustment for time, both Ms Lau and Ms Ng agreed to adopt the Private Flatted Factories Price Index published by RVD owing to the lack of sufficient transactions and price index related to storage and open storage properties in the New Territories. In fact the same was agreed to by the Tribunal in Wan Kwok Leung & Others v Director of Lands [2019] 1 HKLRD 1129. As well, in Yuen Long Fish Merchant's Association Limited v Secretary for Transport, LDMR 44/2000 (unreported, dated 3 April 2001), the rental indices for flatted factories were adopted as well in the absence of other better evidence. We therefore have no objection to applying the Private Flatted Factories Price Index published by RVD in the present case. 160.For location, Ms Ng applied an upward adjustment of 5% generally for all her comparables because according to the Brownfield Study, the location factors were weighted the lowest by the operators. Ms Ng indeed referred to the following Short Term Tenancies granted by the Government in support of her adjustments[66]:
161.By reference to in particular STT 653, Ms Ng opined that short term tenancies for open storage purposes in the vicinity of the Subject Lots fetched $20 per sq m[67]. She also found that STT 1100 and STT 1120 in Ping Che (namely, Area 1, to the southwest of Baptist Assembly and Ping Che Road, a local distributor running from Fanling New Town towards the border) which were all for open storage purposes had a monthly rental between $19 per sq m and $20 per sq m. Ms Ng therefore was of the view that whether closer to Fanling or On Lok Tsuen was not a critical factor for brownfield operation site. 162.At this juncture, we would like to point out that none of the comparables C1 to C4 are situated in Kwan Tei or at an area close to it. Ms Ng’s analysis above was only in response to the similar analysis presented by Ms Lau in her Expert Report dated 11 October 2021. However, Ms Lau’s analysis had missed out STT 1036 or STT 1108 which were granted at higher unit rates per sq m. We also agree with Ms Ng that Ms Lau’s analysis failed again to distinguish their users, extent of covered area, size of factory/ workshop buildings etc. 163.In view of the urban-rural environment in which the Subject Lots are situated, we prefer an upward adjustment of 15% for comparable C3 and 20% for comparable C4 to the 20% or 30% proposed by Ms Lau based on similar analysis which though failed to distinguish the different usages[68]. As well, Ms Lau had accepted during cross-examination that driving distance is not that important so long as one can get to the main road quickly. 164.Turning to accessibility, we agree with Ms Ng that “accessibility” should be factored in the surface quality of the access road as well as whether heavy goods vehicles are able to enter and manoeuver at the site. We would however like to add another 10% for the fact that the occupier has to pass through various private lots and there is question of hidden cost/ risk to use the site. 165.Regarding the adjustment for size or quantum, we appreciate that the adjustment proposed by Ms Ng was subjective. Nevertheless, we agree, like the Tribunal in Yuen Long Fish Merchant's Association Limited, supra, that there should be an optimal size limit but the size of the Subject Lots as a whole up to 4,601.1 sq m might be too large. As a matter of fact, the Subject Lots had been subdivided into Portion A and Portion B, though with Pre-Existing Structures thereon in breach of the Government Lease, with sizes at 2,089.88 sq m and 2,502.67 sq m respectively. Below that size, by reference to §4.10.1 of the Brownfield Study which is re-stated below, we prefer to adopt the traditional approach of adjusting the value downwards as the size increases and the lump sum price increases:
166.The applicant had indeed criticized the site sizes of the comparables obtained by Ms Ng as being too small, drawing our attention to Table 4.3.1 of the Brownfield Study which found the average active brownfield had a site size of 1,917.59 sq m. However, the figure of 1,917.59 sq m failed to distinguish the different brownfield site usages:
167.From the table above, which is excerpted from the Table 4.3.1 of the Brownfield Study, it was only those industries that demand sites with structures thereon eg Construction, Logistics that require sites of larger sizes. On the one hand, we had heard evidence from Ms Ng that if the Subject Lots were not used for logistics, but for a different brownfield operation, the optimal size would be smaller. On the other hand, Ms Lau conceded that while it would be ideal to have a site area of at least 1,000 sq m, a site used for open storage can be smaller[69]. This is supported by her own list of Short Term Tenancies Nos A, B, C, D, and E[70] which corresponds to the table found in §166 above. While we appreciate the difficulties in finding suitable comparables, we consider, as we shall see, the proposed adjustments made by Ms Ng on size not unreasonable. They should, we think, be preferred to those size or dimension adjustments applied by Ms Lau which she conceded as being very abstract or general “概括”. 168.In the meanwhile, we are aware of Ms Lau’s remark at §2.3.3 of her 3rd Supplemental Expert Report dated 9 March 2023 as follows:[71]
169.Owing to the very small sizes of comparables C1 and C2, we tend to agree with Ms Lau and therefore these two transactions are disregarded as comparables. As regards the applicant’s contention that Ms Ng failed to verify whether comparables C1, C3 and C4 were owned or controlled by connected individuals and entities by company searches etc, Ms Ng had already explained in cross-examination that she had checked the identity of the seller and the buyer and had confirmed that the transactions were not connected and even the adjoining lots belonged to apparently different ownerships[72]. To prove otherwise, with respect, we consider it falling within the burden of the applicant who, however, failed to provide any evidence. But Mr Dawes then queried that when the comparable was occupied with adjoining lots belonging to different owners, whether it could still be relied on as a comparable. Ms Ng conceded that when owners of different identities came together for a joint venture or operation, there might be a discount in value for the risk of control[73]. In such regard, we would add another 10%. This is the other side of the coin that in Deluxe Ascent Limited v Director of Lands, LDLR 9/2018 (unreported, dated 28 February 2022) where the Tribunal was determining the compensation for partial interest at §185, a discount of 10% was applied. 170.As a result of the above, we would determine our assessment of the compensation for the Resumed Land as follows:
171.Notwithstanding the above, Ms Lau, in her 2nd Supplementary Expert Report and 3rd Supplementary Expert Report, identified 2 market transactions in her Appendix 4, though for the purpose of assessing the loss due to severance under section 10(2)(c) as follows[74]:
172.As stated in §134 above, Ms Lau applied a conversion factor as much as 1.5 to account for the portion with structures to arrive at what she called “Effective Area”. She then carried her analysis or assessment for the residual portion of Portion A and Portion B as follows[76]:
173.We have already in §134 above stated that the conversion factor of 1.5 was subjective. Further we have found in §139 above that if Ms Lau’s analysis were correct, her finding of a conversion factor of 2.5 was contradicting her own assumption of a conversion factor of 1.5. More importantly, we have stated that if the structures thereon were in breach of the Government Lease and when this was the case, we are doubtful whether the prevailing tenants on site would be attracted to the Subject Lots and pay anything at all. 174.We would disregard comparable D1 again when the percentage of structures thereon amounted to some 36% of site area. 175.Thus, we are left with comparable D2 to which we have already carried out our analysis at §170 above, assuming no structures were erected thereon as per the opinion of Ms Ng. 176.Having reviewed the above, we are contented to adopt $11,200 per sq m as the market value of the Resumed Land as at the Date of Reversion. That is, the compensation to be paid by the respondent under section 10(2)(a) of the LRO to which Item 1 in Part II of the Schedule to the Ordinance refers is:
which is rounded to $19,934,000. Cross-Checking by Income Approach 177.Owing to the various deficiencies in carrying out the direct comparison method of valuation above, we accept that it is prudent to carry out the income approach as an alternative means of ascertaining the market value of the Resumed Land. Here we find the Short Term Tenancy No 1025 which was granted in April 2019[77] for open storage of assistance. This short term tenancy was in fact put forward and identified by Ms Lau in her Expert Report dated 11 October 2021 as STT No G[78]. It is located right beside a car park off Ping Che Road. Comprising an area about 750 sq m, this short term tenancy was granted at a monthly rent of $17,083 per sq m or $22.78 per sq m. We would only consider an upward adjustment of 10% for location but no adjustment for accessibility. We arrive at a unit rent of $25 per sq m or thereabout. 178.By reference to the Property Market Yield for Flatted Factories published by RVD at 3%, Ms Lau had in her Expert Report dated 11 October 2021 adopted 2.8% on the ground that, in her opinion, the Subject Lots had better growth potential because they comprised a larger storage area with good vehicular access[79]. 179.Should we follow the yield of 2.8% put forward by Ms Lau, we arrive at a valuation as follows:
which is some 4% lower than $19,934,000. 180.We are of the opinion that the open market value arrived by the direct comparison approach at $19,934,000 is reasonable and around the mark. Compensation due to Severance 181.In addition to section 10(2)(a), section 10(2)(c) of the LRO provides that compensation would also be payable on the basis of
182.In the present case, we have already stated that the Subject Lots have been bisected into two separate portions as a result of the resumption though, prior to that, the Subject Lots had already been subdivided by the applicant into Portion A and Portion B for letting purpose since the end of 1995. 183.Thus owing to the resumption, there was reduction in site area for both Portion A and Portion B as follows;
184.Ms Lau, as afore-mentioned in §172 above, had tried to evaluate the “before value” in assessing the loss due to the severance of the land resumed by applying a conversion factor of 1.5 for the structures erected thereon. With respect, we have already ruled that it was a wrong approach without any basis. We did not agree with Ms Lau on her adjustment for size either but prefer those applied by Ms Ng. 185.On the other hand, in her Expert Report dated 11 October 2021, Ms Lau relied on an acquisition by the City University of Hong Kong of a site in Lam Tsuen on 15 November 2017 as a comparable for assessing the “after value” for Portion A and Portion B[80]:
186.Firstly, this analysis of Ms Lau was obviously wrong or non-consistent in the first place. The residual portion of Portion A is around 956.0 sq m, i.e. this site in Lam Tsuen is about 10 times as much and yet Ms Lau applied an adjustment for size at +10%. But when adjusting for the size of the residual portion of Portion B which is around 1,865.3 sq m, i.e. significantly bigger, Ms Lau applied a larger adjustment of +21%. Of course, it may all be Ms Lau’s oversight when the adjustment applicable to the residual portion of Portion A should be applicable to the residual portion of Portion B and vice versa. 187.And, in her 3rd Supplementary Expert Report dated 9 March 2023, Ms Lau took into account the area covered by structures and applied a conversion factor of 1.5 as afore-said, arriving at revised adjusted unit rates for Portion A and Portion B of $9,210 per sq m and $10,131 per sq m respectively[81]. 188.While not further commenting on the suitability of this comparable (which is much bigger than the Residual Land or some ten times bigger than the West Portion) or the various adjustments applied by Ms Lau, on the basis of her own assessment of the “after value” above, we find the adjusted unit rates of $9,504 per sq m and $10,454 per sq m (or alternatively $9,210 per sq m and $10,131 per sq m respectively) not significantly lower than $11,200 per sq m determined above in §176 above. 189.As regards Mr Chik’s allegation in his witness statement of drop in monthly rental for Portion B payable at the end of 2021, we agree that one of the likely reasons was owing to contractor of the Government entering upon the Resumed Land, and Hong Kong Ocean thus having to operate on a much smaller site[82]. We do not agree however with Mr Chik’s further allegation, by reference to our on-site observation on 28 March 2023, that Portion B had lost the use of main entrance and the only access. 190.As was mentioned by Ms Ng during cross-examination, we agree with her that there may be many reasons for the reduction in rent for the Residual Land and those reasons may not be related to the resumption, e.g. the economic downturn due to the Covid-19 pandemic etc. 191.As regards the submission by the applicant on whether, after the resumption, the “existing use’ status of “storage and open storage” can be maintained for the Residual Land, we consider it mere red-herring which does not deserve any detailed analysis. On the one hand, Ms Ng had, by reference to the e-mail correspondence contained in Appendix 2 of her 2nd Supplemental Expert Report dated 9 March 2023[83], stated that the present use as storage and open storage on the Residual Land is still considered as “existing use” under the Town Planning Ordinance. There is, we think, no evidence adduced to support the applicant’s speculative assumption. More importantly, Ms Lau’s assumption that, after the resumption, the value of the Residual Land would have been reduced because of its “Recreation” zoning was also in defiance of section 12(aa) of the LRO. 192.In any event, the two decisions cited by the applicant, being HKSAR v Wu Koon Tai & Others, HCMA 337/1999 (unreported, dated 12 April 2000) and 香港特別行政區 訴 合盈汽車服務有限公司, HCMA 39/1999 (unreported, dated 8 September 1999) do not, in our views, assist the applicant. 193.In Wu Koon Tai, on a balance of probabilities, the site concerned was found, prior to 5 October 1990, used primarily as an open storage. Then the magistrate accepted the evidence of officer from the Town Planning Department that since 1992, storage activities at the site had increased substantially: the storage area had taken up to between 70% to 85% of the site and at various places, vehicle parts were piled up to the height of some 15 feet from the ground. The magistrate found from these facts of that case that there had been a substantial increase of storage activities on the site to the extent that it constituted a material change in the user of land since 1992. It was a case decided on the facts of its own rather than an authority that an increase in percentage of covered area constituted material change of use. 194.Similarly, in 合盈汽車服務有限公司, there was found to be a material change in the use of the land from the original four different kinds of uses to only car repairing use. It does not support the applicant’s contention that a mere increase in the percentage of covered area would amount to a material change of use under the Town Planning Ordinance. 195.Notwithstanding the above, in Fan Chun Keung v The Secretary for Environment, Transport and Works, LDMR 5/2004 (unreported, dated 15 July 2005), the land in question which was an open storage compound was bisected into two parts after resumption like the Subject Lots. The experts on both sides agreed that the southern portion after the resumption suffered loss due to the severance of that portion from the other land held by the owner but they held different views as to the quantum of severance loss. The Tribunal, after taking into account the opinion of the two surveyors, the configuration of the subject site in both the before and after situation, and in particular the shape and size of the southern portion of the subject site, held that a reasonable diminution in value of the southern portion of the site was about 30% of the total area of 2,412.8 sq m. 196.In the present case, the Subject Lots comprised originally 4,601.1 sq m. After resumption, they had been bisected into two portions, Portion A and Portion B, having a residual area around 956.0 sq m and 1,865.3 sq m respectively. Upon our joint inspection on 28 March 2023, we observed that both portions still had their vehicular access in and out for heavy vehicles and are still capable of beneficial use for open carparking or storage otherwise save for the erection of structures in breach of the Government lease. 197.Thus, although Ms Lau’s approach of relying on comparables with significant structures erected thereon in assessing the “before value”, applying a conversion factor of 1.5 and the relatively close “after value” to our determination of the market value of the Resumed Land was, we find, faulty, we opined that the applicant still suffered some loss, principally at Portion A (i.e. the West Portion), due to the severance of the Resumed Land from the Residual Land and that a reasonable estimate of such severance loss would be 10% of the value of Portion A. Based on our estimated market value of the Resumed Land of $11,200 per sq m, we estimate the diminution in market value of the Residual Land to be $11,200 x 10%, or $1,120 per sq. m. Applying this amount to the area of Portion A of 956.0 sq m, we calculate the diminution in value of the Residual Land due to severance to be 956.0 sq m times $1,120 per sq. m., which is equal to $1,070,720, which is rounded to $1,071,000. Conclusion 198.We therefore determine that the compensation payable to the applicant is as follows:
Orders 199.Accordingly, we order that the respondent do pay the applicant compensation for the resumption in the sum of $21,005,000. 200.We further order that the two outstanding matters of professional fees and interest be agreed by the parties, failing which it/they shall be restored for arguments before Court No.3 of Lands Tribunal on such date(s) to be fixed in consultation with counsels’ diaries, with liberty to parties to apply for directions on any other ancillary and consequential matters. 201.And we make costs order nisi that the respondent do pay the applicant the costs of these proceedings to be taxed at High Court scale if not agreed, with certificate for 2 counsels for this trial. The said order nisi shall become absolute if none applies to vary within 14 days of this judgment. 202.Finally, we thank all counsels for their submissions.
Mr Victor Dawes SC, leading Ms Anna Chow and Mr Adrian Kwan, instructed by Jal N Karbhari & Co, Solicitors & Notaries, for the applicant Ms Ebony Ling, instructed by the Department of Justice, for the respondent [1] See B(II)/4/438-440 [2] See Bundle A/11/69 at §5. [3] See Bundle A/11/69 at §4. [4] See Bundle B(I)/2/200. [5] See Bundle A/10/62 at §5. [6] See Bundle A/11/70 at §6. [7] See Bundle A/11/70 at §§6 & 8. [8] See Bundle A/11/69 at §§5-6. [9] See Bundle B(I)/1/12-14. [10] Although Ms Lau and Ms Ng agreed that the total land area was 4,601 sq m, there was insufficient information available for them to determine the exact area for Portion A and Portion B prior to resumption. The land areas for Portion A and Portion B shown here were measurements by Ms Lau only, the sum of which is 8.6 sq m smaller than 4,601 sq m. [11] See Bundle B(II)/7/549 per 2nd Joint Expert Statement dated 12 December 2022. [12] See Bundle B(II)/4/440. [13] See Bundle B(I)/1/12. [14] That is, all structures under Portion A under the 2016 Warning Letters were resumed. [15] See Bundle A/54-57. [16] See Bundle A/51. [17] See Delight World Limited v The Secretary for Transport, CACV 167/2004 (unreported, dated 12 May 2005) at §13: “… if the owner of land holds that land under terms of a lease under the terms of which it could legitimately be used for a particular purpose, the owner is entitled to compensation notwithstanding that it has not commenced such use.” The Secretary’s appeal to the Court of Final Appeal was dismissed in The Secretary for Transport v Delight World Limited (2006) 9 HKCFAR 720. [18] Prior to the Melhado decision open storage on non-building New Territories land was controlled in that it took place only under short-term licences or waiver granted by the Government. That decision removed such control as from March 1983. This 1981 Short Term Waiver was granted before the Melhado decision. [19] See Bundle B(II)/6/540. [20] See Bundle B(II)/5/503. [21] See Bundle C/7/134. [22] See Bundle C/8/135. [23] See Bundle C/9/137-138. [24] It was wrongly written down as “2849 RP” and the 2 RPs were said to be then let to a logistics company. In other words, the applicant was referring to Portion B. [25] See Bundle A/11/72 at §11. [26] It reads: “The compensation referred to in section 26 is the right to recover from the Crown for the matters set out in the first column of Part II of the Schedule a sum assessed on the basis specified opposite thereto in the second column thereof and with regard to the provisions of Part I of the Schedule, subject to – (a) … ; and (b) the other provisions of this Ordinance.” [27] But, said Ms Ling, the Government does not in this case claim against the applicant, the previous owner of the Resumed Land, any reduction of assessment to be assessed by the Tribunal for their resumption, on account of any costs to be incurred by the Government for demolishing any unauthorized buildings works on the same. [28] The former title of LRO. [29] That is, the Ordinance in the present proceedings. [30] H. H. Judge Chow, Presiding Officer, and Mr W. K. Lo, Member [31] Compensation for the same was refused at first judgment for breach of block government lease in not obtaining prior approval: Hon Mei Hing trading as Wing Tat Iron and Steel Engineering v The Secretary for Transport, LDMR No.19 of 2000, unreported, 24 July 2001, at §17, 17.1 and 17.2 [32] At §6.1 of the said review decision of Hon Mei Hing, supra, the Tribunal also found that the Court of Appeal in Wong Hoi Nung formerly trading as Bailey Trading Company v The Secretary for Transport, CACV 521/2001 (unreported, dated 6 November 2001) had fully considered the issue of building in breach of block government lease. At §22-25 of the said appeal judgment, the Court of Appeal had expressly cited s.12(b) of LRO and, relying on that provision, gave its agreement with the Tribunal’s decision to refuse compensation sought on construction and site improvement works for breach of block government lease. [33] We use the word “arguably” because of 2 significant differences in Cap.276. First, building works “in contravention of a government lease” is not provided for. Second, apart from reduction of compensation, “refusal” of compensation is also allowed. [34] Two distinctions should be noted. First, contravention of Town Planning Ordinance was added. Second, on top of unlawful building works, unlawful development works were added. [35] Two distinctions should be noted. First, contravention of Town Planning Ordinance was added. Second, on top of unlawful building works, unlawful development works were added. [36] Its predecessor was Streets (Alteration) Ordinance, Cap.130, enacted in 1923. [37] See Cheermark Investment Limited & Another v Director of Lands [2018] 1 HKLRD 79, §§79, 84, 85, 88 & 89 where the Court of Appeal reviewed legislative history of s.12(b) of LRO and referred to it having the same factual and legal context/background to those of s.12(c) of LRO as explained in Yin Shuen Enterprises [38] The aforesaid commentary on Paragraph 5 in Land Compensation & Valuation Law in Hong Kong by Gordon N Cruden and Liza Jane Cruden first appeared at p.454 of its 2nd (1999) Edition, where it originally read at its beginning: “Paragraph 5 introduced a radical change in respect of unlawful building works. Until the enactment of this Ordinance in 1982, other compensation Ordinances had followed the established prohibitions in sections 11 and 12 of the Lands Resumption Ordinance, that compensation is not paid for any use which is for an illegal purpose or not in accordance with the terms of a Government lease (bold and underline supplied).” [39] See footnote 37 [40] HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568; China Field Limited v Appeal Tribunal (Buildings) (No.2) (2009) 12 HKCFAR 342; Secretary of Justice v Cheng Ka Yee (2019) 22 HKCFAR 97 [41] The applicant further referred to para A[3082] and footnote 6 thereof of Hill and Redman’s Law of Landlord and Tenant, Vol.1, Issue 137 [42] The principles enunciated by Pollock CB in Gibson v Doeg, supra, was cited by Godfrey JA in Fairfax Ltd v Attorney General [1995] 2 HKC 617, 622G-I and also by the Privy Council in Attorney General of Hong Kong v Fairfax Ltd, supra, at 245H-J. [43] See Bundle A/10/62 at §5. [44] See Bundle C/10/139 and Bundle A/11/72 at §11. [45] See Bundle C/10/140. [46] There had been Short Term Tenancies granted by the Government in urban areas for use of open carparks with areas including, for instance, 1,320 sq m as found in Fook Lee Holdings Limited v The Secretary for Transport and Housing, LDMR 2/2016 (unreported, dated 21 May 2021). [47] See Bundle B(I)/1/25. [48] See Bundle B(II)/4/450. [49] See Bundle B(I)/1/28). [50] https://www.pland.gov.hk/pland_en/p_study/comp_s/Brownfield/Report/Brownfield%20Study_FR_ENG.pdf. [51] See §4.7.1 of the Brownfield Study. [52] See Bundle B(II)/8/570. [53] This shows that Ms Lau’s assumption of excluding the area covered by structures under the 2016 Warning Letters was wrong and illogical in the first place because the tenant had been continuing to use it during the tenure of tenancy. [54] If the two simultaneous equations were to be rewritten on the basis of the land area prior to resumption, they would be as follows:
which still cannot be resolved. [55] See Bundle A/9/56 at §5. [56] See Bundle A/9/57 at §6. [57] See Bundle B(II)/3/336. [58] CRA stood for Comprehensive Redevelopment Area. See §6 of the judgment. [59] See Bundle B(I)/1/89-93. [60] See Bundle B(II)/3/363-367. [61] See Bundle B(I)/2/258-262. [62] See Bundle A/9/56 at §5. [63] See Bundle A/9/57 at §6. [64] See Bundle B(I)/2/321a. [65] On 28 March 2023, the workshop appeared to have been demolished and the site was occupied for open storage. [66] See Bundle B(I)/2/327-329. [67] See Bundle B(I)/2/163. [68] See Bundle B(I)/1/106-112. [69] Hearing time at 3:05 pm on 29 March 2023. [70] See Bundle B(I)/1/107. [71] See Bundle B(II)/8/569. [72] Heaing time at 12:07-08 pm on 30 March 2023. [73] Heaing time at 12:009 pm on 30 March 2023. [74] See Bundle B(II)/5/487 and B(II)/8/585. [75] Although Ms Lau suggested that this comparable had some 230 sq m covered by temporary structures, Ms Ng relied on the aerial photo which was taken at around the time of the transaction, stating that there was no structure on the comparable. [76] See Table 3.1 and Table 3.2 at Bundle (II)/8/573 & 574. [77] The flatted factory rental at that time was 209.8 whereas that as at the Date of Reversion in December 2019 was 206.2, ie an insignificant difference of less than 2%. [78] See Bundle B(I)/1/108. [79] See Bundle B(I)/1/32 at §6.5.4. [80] See Bundle B(I)/1/38, Bundle B(II)/4/474. [81] See Bundle B(II)/8/577-578. [82] See Bundle A/8/51. [83] See Bundle B(II)/9/596-597. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
)Cases cited in this judgment
Further hearings and rulings under LDMR 1/2021