Attorney General v. Cheng Yick Chi and Others
Read the full judgment text of CACV 91/1981 on BabelCite. This Court of Appeal judgment.
1. The plaintiffs are owners of Section D, Section K, the Remaining Portion, Section B and Section A of Inland Lot 617 ("the properties"). At present there are buildings on parts of the properties These buildings adjoin one another and are known as Nos. 5, 6, 7, 8 and 9 On Hing Terrace. I will call the parts of the properties they occupy the "covered area". The other parts of the properties I will call the "unbuilt portion". The unbuilt portion forms a terrace - a raised level place for walking;
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CACV000091/1981 Headnote Building Ordinance (Cap. 123) - Building (Planning) Regulations meaning of "site" in Regulations whether "site" is a class A site or a class B site when the building to be erected on it abuts on 2 streets one of which is dedicated to the public but is part of the lot on which the building is to be erected - how street shadow area to be calculated in such a case.
----------------- Coram: Hon. Leonard, V.P.,, Cons & Zimmern, JJ.A. Date of Judgment: 23rd December 1981. ----------------- JUDGMENT ----------------- 1. The plaintiffs are owners of Section D, Section K, the Remaining Portion, Section B and Section A of Inland Lot 617 ("the properties"). At present there are buildings on parts of the properties These buildings adjoin one another and are known as Nos. 5, 6, 7, 8 and 9 On Hing Terrace. I will call the parts of the properties they occupy the "covered area". The other parts of the properties I will call the "unbuilt portion". The unbuilt portion forms a terrace - a raised level place for walking; on its south side it gives access to houses Nos. 1 to 9 On Hing Terrace. Its north side falls away abruptly to an ugly impassable lane less than 4.5 metres wide known as Mason's Lane from which it is separated by a balustrade and on the south side of which are multi-storeyed blocks. The terrace itself is wide with trees. On its western side there is access by a steep flight of steps to Wyndham Street and on its eastern side by another flight of steps to Zetland Street. It is in part within the ownership of the owners of the properties and as to the remainder within the ownership of the owners of Nos. 1, 2, 3 and 4 On Hing Terrace, the whole being part of the original I.L. 617. At one place it is partly blocked by an addition to one of these buildings which projects forwards from the building line. This does not however prevent the passage of pedestrians to and from Zetland Street and Wyndham Street. It is common case that it is now, presumably through the unselfishness of the owners or their predecessors in title, dedicated to the public for the purposes of passage but that dedication is limited, by the flights of steps I have mentioned, to pedestriams. The terrace remains part of the properties. It has never been taken over by the crown and never been maintained from public funds. 2. The owners of the properties now wish to redevelop them. They have in July 1979 submitted joint plans to the Building Authority for the erection of a single building to occupy the entirety of the covered area. This is intended to front and abut on to Zetland Street. Its north side will abut the unbuilt portion but will not intrude on to it. Its south side will abut on to a service lane and its west side (or back) will adjoin No. 4 On Hing Terrace. 3. The plans were disapproved on the 22nd August 1979 on the grounds, inter alia, that there was excessive street shadow, that the site was a class B site, that "street shadow" has also to be shown on On Hing Terrace" ("street shadow" having only been shown on Zetland Street) and that "calculations for site coverage and plot ratio are incorrect because you have included in your site area the areas of land taken up by On Hing Terrace ......" The plans had been drawn on the basis that the properties formed a class A site and the "street shadow area" calculations were on the basis that the "site" fronted or abutted on one street only, Zetland Street, but the Building Authority maintained (on affidavit) that "the site is a class B site pursuant to Regulation 2. .. in that it is a corner site abutting on two streets neither of which is less than 4.5 metres wide and consequently shadow area calculations pursuant to Regulation 16 are necessary in respect of both On Hing Terrace and Zetland Street. .. On Hing Terrace .. should not be included as part of the site for the calculation of site coverage and plot ratio" (emphasis added) 4. In the Court below developers sought and obtained 4 declarations which I will summarize as follows:- (A) That the unbuilt portion is an area dedicated to the public for the purposes of passage within the meaning of Regulation 23(2)(b) of the Building (Planning) Regulations, (B) That the unbuilt portion should be included in the site area for the purposes of calculating the site coverage and plot ratio of a single building to be erected on the properties, (C) That the properties forming one site for a single building is a class A site, and (D) That the street shadow calculations for a single building to be erected on the properties should be made under Building (Planning) Regulation 16 as for a class A site and with regard to only one street namely Zetland Street. 5. The Attorney General appealed but prior to the hearing before us a member of his chambers informed the solicitors for the respondents that they did not intend to address the Court on grounds of appeal Nos. (i) and (ii) and that these two grounds might be taken as abandoned. In these two grounds the appellant contended simpliciter that the trial judge was wrong in finding as declared in (A) and (B). The remaining two grounds contended that the trial judge was wrong to have found the properties to be a class A site and wrong to have found that street shadow calculations should be made as for a class A site with regard to only Zetland Street. It is with these latter contentions alone that I have to deal but, as I see it, I must deal with them on the basis that Declarations A and B stand and state correctly the factual and legal position; for they are not contested. We therefore start from the position that the unbuilt portion shall be included in determining for the purposes of Regulations20, 21 and 22 the area of the site on which the building is erected. I would remark that Declaration (B) appears to add nothing for "the purposes of Regulations20, 21 & 22" are to enable permitted site coverage and plot ratio to be determined. For those limited purposes at least I must, as I see it, regard the unbuilt portion as within "the area of the site". The expression "the area of the site" in those 3 regulations must with reference to this case, mean "the properties" for the properties consist of the unbuilt area and the covered area and of nothing else. It is with these considerations: in mind that I approach the application to this case of Regulations 2 & 16 and consider whether the attack on Declarations (C) and (D) is justified. 6. Mr. Barlow contends that the properties should be classed as a class B site and that the street shadow calculations should be made with regard, not only to Zetland Street but also, to the unbuilt portion. At the basis of his argument was a contention that the Building (Planning) Regulations required for their true interpretation the acceptance of the three concepts.
He points to the wording of the definitions of the word "street" in the Ordinance and in the Building (Planning) Regulations. In the Ordinance, the definitions which apply "unless the context otherwise dictates are
There is no express indication that a private street comes within that definition. The definition of private street in the Ordinance reads :
In the Building (Planning) Regulations it is provided by Regulation 2 that
The dispute between the parties is the extent to which the Respondents are controlled by the Building (Planning) Regulations in the development of their property. For the purpose of these proceedings the Regulations impose limitations on three things i.e. site coverage plot ratio and height. Height will affect site coverage and plot ratio but the expressions "class A site" "class B site" and "class C site" are not used in Regulation 16 which controls the height of buildings. The only regulations in which the expressions "class A site" "class B site" and "class C site" appear are regulations 20, 21 & 22 & 25. The effect of Regulation 20 is to prohibit "subject to Regulations 19A" (which is irrelevant to my considerations) "and Regulation 22 and depending on the height of the building" site coverages of domestic and of non-domestic buildings on class A, class B and class C sites respectively exceeding "that percentage of the area of the site" specified in the relevant column of the first schedule. Regulation 21 prihabits, again "subject to Regulations 19A and 22 and depending on the height of the building" plot ratios for domestic buildings and for non-domestic buildings on class A, class B and class C sites respectively exceeding the plot ratios specified in other relevant columns of the same schedule. The headings to the various columns the in first schedule are in the following form First Schedule Percentage site coverages and plot ratios
7. The general result is that the higher the building the lower the percentage site coverage and the higher the plot ratio. Domestic buildings will have a relatively lower percentage site coverage and plot ratio than will non-domestic buildings. Class A sites will have a lower percentage site coverage and plot ratio than will class B sites and class B sites than class C sites. 8. Regulation 22 deals with cases in which the maximum site coverage prescribed by Regulation 20 and maximum plot ratio prescribed by Regulation 21 may be exceeded. It does not help me in determining whether a given site is a class A, B or C site but Mr. Barlow seeks support from it for his contention that the word "site" means something less than the "lot" or leased area and I shall have to consider it. Regulation 22(1) gives to a person proposing to erect a building whether on a class A, B or C site additional site coverage and plot ratio where that developer sets his building back from the boundary of his lot and where the part thereby unbuilt on is dedicated to the public for the purpose of passage with the consent of the government. Regulation 22(2) enables the Building Authority to permit the use of additional site coverage and plot ratio where part of a lot being part that abuts on a street is acquired by the Crown for the purpose of street widening. The extent of additional site coverage and plot ratio that may be made available to a developer in such circumstances is calculated in accordance with complicated provisions. In Regulation 22(1)(a) one is directed to obtain a figure by dividing the product of 1500 and the area of the lot so dedicated by the product of the area of the site and the height of the building. In Regulation 22(1)(b) one is directed to obtain a figure by dividing the product of 5 and the area of the lot so dedicated by the area of the site on which the building is erected. If I understood him correctly Mr. Barlow suggested that this indicated at least a possibility of the presence in the draftsman's mind of the three concepts for which he contended. I find it difficult to understand why it was thought necessary to insert the words "of the lot" in Regulation 22(1)(a) and (b) particularly when what is dedicated is not "a lot" but a right of passage over a lot. One could as easily refer to the "area over which right of passage is dedicated". I think that is what was meant. Furthermore Mr. Barlow can obtain no support from Regulation 22(2) the opening words of which read
The word "being" appears to equate the class A, B or C site with that lot (part of which has been acquired by the Crown) and therefore to indicate that the draftsman regarded "site" and "lot" as synonomous. 9. To return to the general question posed by the attack on Declaration (C). Because (a) the unbuilt portion is an area dedicated to the public within the meaning of Regulation 23(2)(b) and because (b) the unbuilt portion should be included in the site area for the purposes of calculating site coverage and plot ratio and because (c) an area can not abut on part of that very area - it must, by the very nature of things, abut on something outside it - and because (d) I can find no warrant in the Regulations for distinguishing between the "leased area" and "the area of the site", I am driven to the conclusion that the properties abut only on Zetland Street and are a class A site. Declaration (C) is therefore in my opinion valid. 10. It remains to consider Declaration (D). The declaration sought and made was to the effect that the street shadow calculations for a single building to be erected on the properties should be made (pursuant to Regulation 16 of the Building (Planning) Regulations) as for a class A site with regard to only Zetland Street on which the properties taken as a single site front. 11. The difficulty as to this declaration is that although I have held that the properties are a class A site and although the properties front or abut only upon Zetland Street Regulation 16 appears to me to concern itself not so much with sites as with buildings on sites. The relevant paragraphs of the letter of the 22nd August 1979 disapproving the plans to which I have already referred suggest that the classification of a site as class A, B or C determines the manner in which street shadow calculations should be made. The same suggestion is made in paragraph 13 of the affidavit of Mr. Cheng Wai-dart of the 5th June 1981. This reads in part
Mr. Barlow's approach before us was similar; for the greater part of his argument was directed to that part of the judgment in which Liu J. came to the conclusion that the site was a class A site rather than a class B site. This seems to me to be the wrong approach for street shadow calculations are based on buildings to be erected and not on the classification of sites on which they are to be erected. By Regulation 16(1) it is laid down that "where a building abuts fronts or projects over a street the height of such building shall be determined by reference to the street shadow area thereof". The building the subject of the disapproved plans will clearly abut on both Zetland Street and On Hing Terrace notwithstanding the fact that On Hing Terrace is part of its site. 12. Its street shadow area will be "an area on the surface of a street contained by -
and that area shall not exceed the area obtained by applying the formula given in Regulation 16(2) and (3). Its street shadow area vis-a-vis Zetland Street is capable of ascertainment and no objection to the manner of its ascertainment on the disapproved plans has been made. The difficulty arises with regard to the method of its ascertainment vis-a-vis On Hing Terrace. As I see it, when seeking to ascertain it I must look first to the definition of street shadow area contained in 16(4) which I have quoted. Applying this definition to the properties I must find an area on the surface of On Hing Terrace contained by four lines. Line (b) is a line drawn by the frontage of the building. This must, as I see it, be a line drawn along the verge of Mason's Lane where Mason's Lane touches On Hing Terrace parallel and equal in length to the side of the building where it abuts on On Hing Terrace. There will be two lines (c) each running from Mason's Lane at right angles to the centre of On Hing Terrace. 13. Finally there will be (a) the line formed by the projection from every part of the side of the building abutting On Hing Terrace of planes at an angle of 76o from the horizontal from the highest point on such building or on any projection therefrom of a permanent nature from which such planes could be drawn uninterrupted by any other part of that building. My explanation for the necessity of drawing each of these lines is as follows 14. Line (b) a line formed by the frontage of the building. There is no definition of the phrase "frontage of the building" but there is a definition of "frontage" in relation to a building which I think must be the same thing. It means "that boundary of a site upon which the building is erected which abuts or fronts a street and includes any service lane or other opening within such boundary." The boundary which abuts the street (On Hing Terrace) is, if it exists or can be imagined, necessarily that which also abuts Mason's Lane and divides it from On Hing Terrace. I am accepting for the purposes of this explanation that On Hing Terrace is a street and that the proposed building abuts it. I am also accepting that the boundary between Mason's Lane and On Hing Terrace abuts both. If the boundary did not abut On Hing Terrace it would not abut a street more than 4.5M. wide. There would then be no method of containing any area. 15. Lines (c) One would normally expect these lines to project outwards from the site and not inwards to the centre of a street on the site. That again can not be on our facts for if it were one could not imagine any area as contained by them. 16. Line (a) - here I have followed the definition exactly. The difficulty in finding or calculating the extent of an area on the surface of On Hing Terrace contained by these lines is that the higher the building the smaller will be the area obtained by applying the formula because the area must be calculated not with regard to the frontage of the actual building but with regard to the boundary of the site. This cannot have been the intention of the Governor in Council and I am forced as a result to the conclusion that there is a casus omissus in the Regulations. They do not cater for and cannot be made to cater for the situation in point. 17. The result as I see it is that the Respondent is entitled to a declaration in terms of Declaration D with the omission therefrom of the words "as for a class A site". Street shadow calculations are not made with reference to the class of the site in question. 18. I would dismiss this appeal. Cons, J.A. : 19. This appeal has been argued to a large extent as though two questions were involved, "What is the correct classification of the site which the five plaintiffs together have at On Hing Terrace?" and "How is that site affected by Regulation 16 of the Building (Planning) Regulations?". However, to my mind the two questions are so closely interwoven together within the Regulations, in particular within Part III thereof, that neither can be adequately dealt with in isolation from the other. And as I see it now the answers to both depend upon the answer to yet a third question, "What are the boundaries of that site?" 20. Let me make two preliminary observations. Firstly, I take the expressions "the site" and "the site on which a building is erected" to be synonymous. They appear to be used interchangeably throughout the Regulations and I have been unable to discern any rhyme or reason for the distinction. Secondly, neither of those expressions relates merely to that part of the ground which will be actually covered by the proposed building. 21. We are then left with two possible approaches to the question posed. Mr. Widdicombe, who appears for the building owners, says we must look to the whole of leased area, regardless of whether the public have rights of passage over part of it or not. Mr. Barlow, who appears for the Attorney General, would restrict us to that area of the land which is available for actual building; the rest has become "a street" and, for the purposes of the Regulations, can be nothing else. 22. Although there are many definitions set out in the Building Ordinance. under which the Planning Regulations are made, and many more in the Regulations themselves, the draftsman has not included a definition for "the site". Taking the words in their popular sense I would agree generally speaking with Mr. Widdicombe that they would refer to the leased area. When a man says that he has bought a site in the country and intends to build a cottage thereon, he means the whole of the land he has bought. From that point of view he would expect to be able to build on whatever part of it he fancied. If he could not, he would probably add "but I cannot build on that part because there is a stream" or "because my neighbour has a right of way across of the corner". If there were a road through it I think it more likely he would say "a road runs across my site", rather than "I have two sites, one on either side of a road". However, the popular sense of a word may have to be modified when it is found not to suit the context of the legislation in which it appears, and this is more likely when the legislation is of a technical or specialized nature. 23. In my view there can be no doubt that the unbuilt portion of On Hing Terrace is a street, whether one applies the definition contained in the Ordinance, the Regulations or the common law. It is flanked by a row of houses and runs between what are acknowledged to be two public streets, Wyndham Street and Zetland Street. For over sixty years the public have been allowed to use the terrace to pass from one of those streets to the other. The inference is that it has at some stage been dedicated to the public as a highway. Indeed the Judge so found in the Court below. He granted a declaration that the terrace "is an area dedicated to the public for the purposes of passage within the meaning of Regulation 23(2)(b)". 24. Regulation 23(2) is as follows :
25. The Judge below, applying that Regulation, made a further declaration that the terrace "should be included in the site area for the purposes of calculating the site coverage and plot ratio of a single building to be erected" thereon. No appeal now is brought by the Attorney against either of those declarations, although they were originally included in his notice of appeal. 26. Mr. Widdicombe contends that it automatically follows from the acceptance of those declarations, and the wording of Regulation 23, that On Hing Terrace is within "the site". For my part I do not see that it does. The Regulation does not provide that the area dedicated shall be included in the site. It provides that that area shall be included when determining for the purposes of Regulations 20, 21 and 22 the area of the site. Those Regulations are not concerned with boundaries, but with areas, or to be strictly accurate, with calculations by which the maxima for particular areas may be discovered. The "site area" is an important figure in those calculations, but to my mind it does not follow that for those purposes the site area must necessarily be an actual undivided area on the surface. The words "shall be included" could be equally well applied to the figure used in the calculations. 27. An alternative contention of Mr. Widdicombe is that even if Mr. Barlow's construction be correct, in the instant circumstances the land available for actual building and the leased land are in fact one and the same; although the public has a right of way along the terrace the owners could, with the permission of the Building Authority under Section 31 of the Ordinance, build above the terrace or they could without the need of any permission, develop beneath it. 28. The short answer to the first suggestion is that at the moment no permission has been granted by the Building Authority and it is to the position at the moment that we must direct our minds. It would also seem unlikely, from the tenacity with which this matter has been pursued, that the Authority would ever give permission to build over the entire terrace. 29. There is more attraction in the second suggestion. It is no distortion of language to say that "the site" extends to all that lies beneath it as well as that above. There may be difficulties with regard to lighting and ventilation, but the owners could go downwards without any fear of contravening the regulations as to the height or site coverage. Plot ratio could probably also be calculated, although the definition in Regulation 21(3) would need amendment, replacing "the area of the site on which the building is erected" by "the area of the site under which the building is erected". 30. The need for that amendment illustrates to my mind the weakness of the argument. Even if "the site" be taken to include the air above and the earth beneath, there is still a large part in the middle that cannot in any event be touched, i.e. the surface and a reasonable space above. In my view it is then not possible with good sense to say that On Hing Terrace is available for actual building. The leased area and the area contended for by Mr. Barlow are in the present instance not one and the same. 31. Mr. Barlow draws our attention to Regulation 22. He does not rely upon its contents as such, but uses it to show that the draftsman did have in mind a distinction between the leased area and the land available for actual building, for the regulation makes provision for "the lot" and "the site on which a building is erected" in such a way that it is most unlikely that they were intended to have the same meaning. 32. Mr. Widdicombe explains the use of the different expressions therein by reference to the second part of the regulation, which deals with the situation where part of the land is surrendered to the Crown. Once that has been done, he says, it is necessary to have expressions which differentiate the original lot from the land retained, the distinction is not necessary for the first part of the Regulation, but the same expressions were probably employed for the sake of uniformity. 33. The explanation is consistent with a passage that appears at pages 27 and 28 of "Valuation of Development Land in Hong Kong" by Mr. P.J. Roberts and which Mr. Widdicombe adopts as part of his argument. In that passage, Mr. Roberts applies the formulae set out in Regulation 22 to hypothetical developments. For his calculations under Subrule (1), he uses the whole of the leased area including that which is dedicated to the public; but for his calculations under Subrule (2) he uses only that part of the leased area that remains after the acquisition by the Crown. 34. On this interpretation of the formulae it will be noticed that although the words of the operative parts of both subrules of the site are the same, the owner who dedicates his land to the public receives greater benefits by way of site coverage and plot ratio than the owner from whom the land is acquired by the Crown(1).
He may also receive a greater benefit by way of height, for if the boundary of his site is taken to remain as it was before the dedication, and it is a boundary which abuts a street not less than 4.5m wide, which brings Regulation 16 into operation, such of the shadow of his building as falls within the dedicated area will not be counted against him. 35. The additional height could perhaps be an accidental bonus for the Explanatory Note which introduced this regulation in 1962 spoke only of increased "floor area" in order to encourage developers to provide additional space for pedestrian circulation at ground level. It may therefore be ignored. But whether the legislature intended there to be an inevitable disparity in site coverage and plot ratio between those who dedicated and those who surrendered is open to doubt. The Explanatory Note, when referring to surrender after dealing with dedication, spoke of "a similar increase". 36. Except that the Building Authority has a discretion in the application of Subrule (2) - where as Subrule (1) is automatic, provided that the Government has consented - there is no disparity if Mr. Barlow's construction is adopted. The formulae would produce the same result in each case and there would be no additional height bonus to either. However the regulation is not without its difficulties for him. In both subrules, although in slightly different words, in each, the draftsman appears to equate "lot" with "site". In the former we find "Where ............. a building on a Class A, B or C site is set back from a boundary of the lot on which it is erected ..........." and in the latter, ".........the site coverage of a building erected on that lot, being a Class A, B or C site ........." 37. Mr. Widdicombe's principle problem, as I see it, is Regulation 16. Subrule (1) provides :
38. Subrule (2) provides that the shadow shall not exceed an area obtained by the application of formulae set out in that subrule and in (3). The formulae are based on the length of the site along the street and the width of the street or streets themselves. The actual shadow of the building may be discovered by the application of the definition contained in Subrule (4).
39. If taken literally the (a) line of the definition could not be drawn properly except in relation to a building occupying the whole width of the site and of uniform height throughout. However the shadow is clearly intended to reflect the general outline of the building as it abuts or fronts the street and apparently it is worked that way in practice. The problem in the present case is with line (b), because "frontage" is given a particular definition for the purposes of the regulation :
40. If Mr. Barlow is correct that boundary runs along the nearer side of the open terrace, i.e. the front of the proposed building itself, and the shadow can be easily measured as it would fall upon the open terrace. It is a perfectly normal situation and the shadow can be imagined as a genuine shadow provided the sun were in the right position. 41. However if Mr. Widdicombe is correct the boundary runs along the far side of the open terrace. In other words, the street which the building abuts is within the site itself. Mr. Widdicombe has convincingly demonstrated that in that situation the regulation cannot be made to work satisfactorily or perhaps at all. The shadow can in no way be imagined as a natural shadow. It would not start at the foot of the building and stretch away from it. It would start from a point quite unconnected with the building and stretch towards it, initially getting smaller as the building increased in height. Only eventually might it commence to stretch away from the building and start to get larger. That is an absurd result and Mr. Widdicombe therefor argues that it is clear the regulation was never intended to apply in circumstances where the street on which the building abutted or fronted was outside the leased area. The definition of street in the Ordinance is prefaced with the words "unless the context otherwise requires". Mr. Widdicombe suggests that this is such an occasion. 42. If that suggestion is correct, then another almost equally curious result arises. Although On Hing Terrace would not be considered a street in relation to the presently proposed development, it would be a street in relation to development by the owners of land on the far side of Mason Lane. This point was not raised in argument and it may well be that Mr. Widdicombe would have re-phrased his suggestion and said that a street in regulation 16 means any street other than a private street, which I take On Hing Terrace to be by virtue of the definition in the Ordinance. In that case the far owners would also reap the advantage. However the definition of street in the regulations expressly includes a private street, and although that definition is also prefaced by the words "unless the context otherwise requires" that express inclusion would appear to indicate some intended emphasis by the legislature. 43. I hope that the foregoing comments sufficiently illustrate the impossibility of an overall construction which is consistent throughout the legislation. Either when applying a regulation which contains the word street we ignore something that is so obviously a street for all other purposes, or we accept that Regulation 22 is, on the face of it, selfcontradictory, although the introduction of the reference to classes of site does not appear to affect the substance. 44. Ultimately I have come to the conclusion that the former option is to be preferred. It seems to me that if we adopt Mr. Barlow's approach we create no anomaly and do less violence to the language, and I think also to the intention of the legislation. That intention I take to be to control the density of development by relating buildings to the sites which they abut or front. To that end it is immaterial that the street in question was originally created by private rather than by public grant. 45. For these reasons I find that the unbuilt portion of On Hing Terrace is not within the plaintiff's site as that expression is used in the Regulations. It is for all purposes a street. By definition then the site is not a Class A site and the street shadow calculations should not be made as for a site of that class. I would allow the appeal and set aside the declarations granted below. Zimmern, J.A. : 46. On Hing Terrace is a charming and secluded plot of land formed many years ago a short distance up the hill from Queen's Road Central. On the western side it is bounded by Wyndham Street and on the eastern Zetland Street. The only approaches to the terrace are from these two streets up granite steps. On the southern side it abuts on to Mason Lane many feet below, which is now blocked and on the northern a narrow service lane. In 1918 there were built on the terrace 9 houses well set back from the northern boundary of the plot and some time in the sixties houses 1-4 on the Wyndham Street end were redeveloped. The present owners of houses 5 to 9 in a joint venture are now desirous of developing their land into a modern composite building. Their Architects submitted plans to the Building Authority who refused to approve them very broadly on the grounds that the calculations were based on a Class A site whereas they should have been based on a Class B site. The parties joined issue and the respondents issued an Originating Summons asking for the following four delcarations :-
47. The matter was heard before Liu J. who granted all the declarations sought and the Attorney General now appeals. Mr. Barlow for the Attorney General at the outset abandoned his appeal against declarations (a) and (b) leaving only (c) and (d). Before turning to his grounds it is now necessary to go into the details and specifics of the controversy. I have said the buildings on terrace are set back from the northern boundary of the terrace leaving an unbuilt area in depth of well over 4.5m. for the length of the frontage of the terrace. Mr. Widdicombe concedes that this area has for a long time been dedicated to the use of the public for foot passage between Wyndham and Zetland Streets. He further concedes that that area is a street within the definition of the Building Regulations with the reservations that the respondents are only bound as to the dedication of the top soil. The ground under and the air space above are theirs to deal with as they please as owners subject only to the law and the Crown lease. 48. Regulation 2 of the Building (Planning) Regulation provides inter alia :-
49. Mr. Barlow says the site is a Class B site because it is a corner site abutting on two streets both over 4.5m. wide namely Zetland Street and the unbuilt on portion of the terrace. Mr. Widdicombe retorts that the unbuilt on portion is part of the site and on the north it abuts onto Mason Lane which is less than 4.5m. and blocked in any event. The site abuts on to only one street not less than 4.5 m. i.e. Zetland Street. The question is then on a true construction of the regulations what is the meaning of the word "site" not only as used in Regulation 2 but in other relevant regulations. 50. The purpose of the regulations as I understand them is to control intending property developers in the extent they may develop their sites. Broadly, inter alia, they control maxima for a) height of an intended building and depending on height, b) site coverage and c) the gross floor area and the methods for measuring each of them. The word "site" is used in each of the relevant regulations. 51. Mr. Barlow in support of his appeal advanced a new argument which was not used in the Court below. He says the word "site" means only that portion of the leaseholder's land on which he may lawfully build. He says there are three concepts. First, there is the leaseholder's plot which is called "the Lot", second is the "site" and the third that portion of "the Lot" on which the leaseholder may not lawfully build. Support for this contention he says is to be found in Regulation 22 the only regulation which uses the word "Lot". This is known as the bonus regulation for it permits excess of maxima site coverage and plot ratio upon urban units though Mr. Barlow calls this the regulation which goes to title. It provides first, "Where .... a building on a Class A, B or C site is set back from a boundary of the lot on which it is erected, being a boundary that abuts on a street and with the consent of the Government, the part of the lot that is thereby not built upon is dedicated to the public for the purposes" then follows the formula in respect of the bonuses for site coverage and plot ratio. Second, "Where part of a lot, being a part that abuts on a street, is acquired by the Crown either by agreement or by resumption.... for the purpose of street widening, the Building Authority may permit - (a) the site coverage for a building erected on that lot being a Class A, B or C site ...." then follows another set of formula for the bonuses. 52. I find his arguments of three concepts difficult to accept. Regulation 22 is closely tied up with the classification of site as defined in Regulation 2 which I have set out and those definitions were amended to read as they now stand only in 1979. If Mr. Barlow were right then taking as an example a Class A site and substituting "Class A site" by its definition Regulation 22(1) would read :
Here we have the site and the boundary of the lot both abutting on to the same street. With respects to Mr. Barlow the boundary of the lot and that of the site must mean the same boundary. 53. That "site" means the whole and not just the part which can be built on is supported by Regulation 23(2) which reads :
54. This regulation is supplementary to regulations 19, 20, 21 and 22. 55. For the purpose of this argument it needs only be applied to Regulations 20 and 21. Regulation 20 provides the formula for ascertaining the maximum percentage of the area of the site which may be covered by the building called the site coverage based on height, class and user. Regulation 21 provides the formula for ascertaining the maximum plot ratio based on the same factors and plot ratio of a building is obtained by dividing the gross floor area of the building by the area of the site on which the building is erected. Thus to determine the site coverage and the plot ratio it is necessary to ascertain the area of the site on which the building is erected. Regulation 23(2) enjoins the Building Authority in such ascertainment (a) not to take into account any street or service lane and (b) to include any area dedicated to the public for the purposes of passage. 56. The language of Regulation 23(2) is clear. It is implicit under (a) that the enjoinder "not to take into account" applies to any street or service lane within "the area of the site on which a building is erected" and express under (b) by the words "there shall be included any area". 57. I respectfully agree with declarations (a) and (b) made by the learned judge. Mr. Barlow having abandoned his appeal against these 2 declarations cannot now be heard to say that the dedicated unbuilt area is not within "the area of the site on which a building is erected". I can see no reason why another meaning should be given to the word "site" used to define the three Classes namely A, B, C in Regulation 2. A site cannot abut on to a street within the boundaries of the same site and I also respectfully agree with declaration made by the trial judge that the site is a Class A. It abuts only on to one street not less than 4.5m. wide namely Zetland Street. 58. It seems to me that the regulations which control the measurements of buildings are based primarily on whether the site abuts on to one or more streets not less than 4.5m and if not then Regulation 19 applies and the height, site coverage and plot ratio are to be determined by the Building Authority. 59. I now turn to declaration (d) which is really the pith of the controversy. It is the construction of Regulation 16 which provides the formula for ascertaining the maximum height of buildings which my Lord the Vice-President has described in another matter as an exercise in the abstract. 60. This regulation does not speak in terms of Class A, B or C site. It reads :-
61. Mr. Barlow submits that the intended building would abut, front or project over two streets forming a corner namely the dedicated portion and Zetland Street. He says it does not matter if the site then comes within the definition of a Class B site. Regulation 16 has nothing to do with site classification which is only relevant to working out plot ratios and site coverages. It is argued that the plain language of the regulation says where a building abuts, fronts or projects over a street and not where the site abuts, fronts or projects over a street and the intended building so abuts over two streets. There is of course much force in this literal construction but is that the true construction? The first formula under Regulation 16(2) is F x W ?2 where F is said to be the length of the frontage of the building, which means the frontage of the site for Regulation 16(3) defines "frontage" in relation to a building as meaning that boundary of a site upon which the building is erected which abuts or fronts a street and includes any service lane or other opening within such boundary. That formula can only be applied where the site abuts on to one or more streets. In this case the existing buildings are set back and the intended building will by necessity of the dedication also have to be set back. I cannot, however, accept Mr. Barlow's argument that the "site" is thereby set back pro-tanto. The respondents still own the soil up to the boundary abutting on to Mason Lane. They have to maintain the top soil on the terrace not built on and dedicated to the public for foot passage. They can build under it and they own the air space over it. It appears to me the Building Authority erred in classifying this part of the terrace as a Class B site and this can be seen in paragraph 13 of the affirmation of Mr. Cheng Wei-dart, a Chief Building Surveyor. He affirmed :
62. The trial judge has disabused his belief contained in the last sentence and the appeal against this finding has been abandoned. I have agreed with the judge that the site in issue is a Class A site. I can see no justification for departing from one of the rules of construction to give the same meaning to the same words occurring in different parts of an Act of Parliament. "Site" in Regulation 16 has the same meaning as the word as used in Regulations 2, 19, 20, 21, 22, 23. It is the use of the word "street" in the first sentence of Regulation 16(1) which has caused the controversy. Having regard to the whole of Regulation 16, the context requires that that word be confined to mean a street not less than 4.5m wide on to which a site abuts and not otherwise. 63. Accordingly, I say the trial judge was right in his declaration (d) save for the words "as for a Class A site" and would dismiss the appeal with costs.
Representation: Barlow and N.L. Strawbridge (Legal Department) for Appellant. D. Widdicombe Q.C., O. Cheung Q.C., Audrey Eu (Philip K.H. Wong & co.) for Respondents. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||