Firebird Ltd. v. Attorney General

CACV000098/1981

Refused by Building Authority to approve building plans. Whether site a Class A site or a Class C site under Building (Planning) Regulations. Effect of amendment of Building (Planning) Regulations. Date on which amendment effective where Governor in Council "deems it expedient that publication be dispensed with". Amendment of Regulations not merely declaratory of existing law. Effect of Cheong Ming Investment Co. v. Attorney General approved. Section 23 of Interpretation Ordinance (Cap. 1) Right accrues to developer on submission of building plans and is kept alive by Section 23(C) & (E). Right to declaration that developer was entitled to have plans considered on the basis that he owned a Class C site rather than a Class A site not taken away notwithstanding absence of certificate from Director of Fire Services.

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Coram: Hon. Leonard, V-P., Cons & Zimmern, JJ. A.

Date of Judgment: 27th November, 1981.

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JUDGMENT

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Leonard, V-P:

1. This is an appeal from the trial judge's refusal to grant to the appellant declarations that the Building Authority was not, on the 19th October 1979 empowered to reject plans for building works at 26-36 Shun Ning Road, Kowloon, submitted by the appellant on 8th September 1979 on the ground that the site was a class A site within the meaning of Regulation 2 of the Building (Planning) Regulations and a consequential declaration that the rejection was null and void and of no effect.

2. 26-36 Shun Ming Road is a site fronting on to Shun Ning Road, which is a street having a foot path 3.05m. in width and a road surface of 18.29m. in width. On two other sides the site is bounded by what are described on the plans submitted as "service lanes" each of which is within the definition of "street" in Section 2 of the Ordinance and Regulation 2 of the Building (Planning) Regulations. The plans were submitted on the basis that the site was a class C which classification if correct entitled the developer to an enhanced plot ratio and site coverage. The plans having been submitted on the 8th September 1979 were rejected some 41 days later on the 19th October 1979. The grounds given for this rejection are the subject of attack.

3. The rejection was made on a stereotype form which claimed that "elementary checking" has disclosed that -

The Building Authority further commented -

"As major revision of your proposal is envisaged my above comments are not intended as exhaustive."

4. Major revision may have been envisaged by the Building Authority. It was not envisaged by the appellant who objected to his site being classified as a class A site and initiated these proceedings.

5. Several weeks after the appellant's plans had been submitted, that is, on the 9th October 1979 the Governor in Council saw fit to amend the Building (Planning) Regulations by deleting the definitions in Regulation 2(1) of "Class A site", "Class B site" and "Class C site" and substituting the following -

6. The original Regulations had not in the definitions made reference to the width of the "streets" upon which the site abutted.

7. I say "saw fit" because Mr. McPherson contended before us that the action of the Governor in Council could not have effectively amended the Regulations until after the date of rejection. I think it would be as well to deal with this contention straight away and in order that I may do so it is necessary for me to refer to Section 38(5) of the Building Ordinance and Gazette Notification L.N. 249 of 1979.

8. Section 38 enables the Governor in Council to make regulations and sub-section 5 reads "Such regulations shall be published once in the Gazette at least 3 weeks before coming into operation: Provided that where the Governor in Council deems it expedient such publication may be dispensed with."

9. Gazette Notification L.N. 249/1979 was published on 12th October 1979. It refers to action taken by the Governor in Council on the 9th October 1979. It is expressed to be "made by the Governor in Council under Section 38 and in pursuance of the power conferred by the proviso to Section 38(5)". The only power conferred by that proviso is power to dispense with publication; the result of such dispensation must, it seems to me, be that the Regulations come into force immediately they are made. If they are subsequently published, when already in force, that publication cannot alter the date on which they come into force. I would, therefore, hold with some reluctance that they came into force on the day they were made and consequently were in force on the date of rejection of the plans. I say "with some reluctance" because one would not, save in a case of dire emergency which this was not, expect Regulations which might well have the effect of seriously diminishing the value of a man's property to be made without publication nor would one expect such regulations to come into force overnight without any warning to those interested or to the public generally.

10. It is said in an "explanatory note" that the amending Regulations "make clear" what Mr. Barlow contends was existing law and I shall have to consider later whether this is so. I am constrained to hold that these Regulations did come into effect on the 9th October 1979 and not 21 days after the publication of the 12th October 1979.

11. While Mr. McPherson and Mr. Barlow appeared to consider that the only alternatives were the 12th October 1979 and the 31st October 1979 it does not affect the remaining arguments that I should hold that the amendment came into force on the 9th October 1979.

12. The second issue arising is whether the appellant was entitled to have its plans considered under the law in force on the day of their submission. The trial judge held that the new regulations were not retrospective to the date when pending applications were lodged. The respondent does not challenge this finding by a respondent's notice and I see no reason to differ from it. Mr. McPherson further contends, whether the effective date was the 12th October or the 9th October, that the appellants were entitled to be governed by the law in force on the date of submission of the plans, the 8th September. Consideration of this argument involves acceptance of the trial judge's finding, challenged by Mr. Barlow, that the new regulations did affect a change in the law and that the appellant did have a class C site on the 8th September. Accepting for the moment that a change in law was effected the question to be decided is whether on presentation of the plans there was in existence "any right, privilege, obligation or liability acquired, accrued or incurred" under the Regulations repealed on the 9th October 1979 (see Section 23(c) of the Interpretation Ordinance) or whether the duty imposed on the Building Authority by Section 16 of the Building Ordinance to investigate the appellant's plans was that of investigating "in respect of any such right, privilege, obligation or liability". For if a right had been acquired the investigation should be continued as if the repealing Ordinance had not been passed. (Section 23(e) of the Interpretation Ordinance).

13. Section 16 of the Building Ordinance sets out 16 specified grounds on which the Building Authority "may refuse to give his approval of any plans of building works". The use of the word "may" suggests discretion but discretion to refuse cannot exist where the "carrying out of the building works shown" (on the plans) "would contravene the provisions of this Ordinance" (Section 16(1)(d) ) for the Building Authority is under a duty to enforce it. Hence no appeal lies to an appeal tribunal appointed under Section 43 from a refusal under that ground. Although the Building Authority must enforce the Ordinance he cannot enforce it if it has been in part repealed by the amendment in a way which would deprive the appellant of a "right" which had "accrued" prior to repeal, for that right is not to be affected by the repeal.

14. The vital question then is whether on the 9th October the appellant enjoyed a right acquired or accrued under the Buildings Ordinance or Regulations made under it or whether the question was on that date "open and unresolved". Did he have more than "a hope or expectation" that his plans would not be refused under Regulation 20 on the basis that his site was a class C site.

15. The site in question was and is undoubtedly a corner site that abuts on 3 streets as streets generally are defined in the Ordinance and in the Regulations. The plans were drawn up on the basis that it was a class C site. Under the new Regulations it became (assuming that it was not already) a class A site and lost its favourable site coverage and plot ratio. When seeking to determine the nature of the appellant's rights when he submitted the plans it is necessary to bear in mind that he was the owner of a site the value of which would vary in the open market depending upon whether it was a class A or a class C site. For the owner of a class C site had the right to develop it (subject to the approval of his plans) in a more advantageous manner than if it were a class A site. That additional value attached to the land by virtue of its nature and situation and because the Building Regulations in existence permitted enhanced development. The effect of submitting plans is to set on foot an enquiry by the Building Authority into sixteen matters. He must refuse approval to the plans if his investigation is unfavourable in at least six of these matters; he has discretion to refuse in others and machinery exists for appeal to an appeal tribunal where he has exercised his discretion. He was obliged to refuse at the time of the submission of the plans if the site was in law a class A site but could not properly have refused for that reason if it was a class C site. On a strict reading of the section he may also have been obliged to refuse if a certificate from the Director of Fire Services was not forthcoming, I will deal with this later.

16. I consider that in undertaking the laborious and not inexpensive process of having plans prepared and submitted for approval the appellant was asserting a right attaching to his ownership of the site so that the right became an accrued right and the Building Authority incurred an obligation not to reject plans on the ground that they were unsuitable for a class A site if they had been properly prepared and submitted when the site was a class C site. In D.P.W. v. Ho Po Sang⁽¹⁾ where the landowner was held to have no more than a "hope" at the time of the repeal i.e. 9th April 1957, that he would receive a favourable decision from the Governor in Council whose discretion was absolute, the considerations applicable appear to have been quite different. Lord Morris of Borth-y-Gest giving the judgment of their Lordships observed -

17. In our case the Building Authority had to conduct an investigation into the question whether the appellant should have his plans passed after they had been submitted. Adequately to do so he had to consider whether the site involved was a class C site. This consideration was in my view an investigation in respect of a right given under the original Regulations. The amending Regulations took away this right. As I see it in each particular case that right given by the original Regulations accrued to a developer when he submitted plans, for the site then either was or was not so classified by the definition of "class C site" and plans to be submitted under the Regulations would have to be worked out on the basis of the classification of the site as it was when they were prepared for submission and submitted. The investigation was an investigation" in respect of any such right" and because of paragraph (e) of Section 23 the right was "unaffected and preserved". The investigation to be carried out by the Building Authority could not change the classification of the site; it could not give a right to a classification and "there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some rights should or should not be given". It is true that the investigation was also to decide whether the plans should be approved but to determine that an investigation in respect of the right to enjoy a class C site was first necessary. I would, therefore, hold that the appellant was entitled to the benefit of Section 23 of the Interpretation Ordinance. The Regulations made on the 9th October 1979 changed the wording of the definitions of the law and I turn to the question whether or not they did change the law.

18. Mr. Barlow claims that the purpose of these Regulations was no more than to declare the existing law and this although no such phrase as "for the purpose of removing doubt" is used. Some short time before the amending Regulations were passed it had been decided in Cheong Ming Investment Co. Ltd. v. Attorney General that if a site abutted on three streets although two of these streets were less than 4.5m. in width the site was a class C site. There was no appeal from this decision but Mr. Barlow contended before us and in the Court below that it was wrongly decided. If he is right Section 23 of the Interpretation Ordinance does not come into play.

19. As I have earlier remarked, lanes no matter what their width, fall within the definitions of "street" contained in Section 2 of the Ordinance and Regulation 2 of the Building (Planning) Regulations. In the original un-amended Regulations "Class C site" is defined as meaning "a corner site that abuts on three streets and also means an island site". (I pause to remark that there is no definition of "island site" but presumably it means a site abutting on all sides on "streets"). Part III of the Building (Planning) Regulations deals with permitted heights, site coverages, plot ratios, open spaces the lanes. In Regulation 16 which deals with the calculation of height with reference to street shadow area the definition of street for the purposes of that Regulation is limited to "street or service lane at least 4.5m. wide".

20. Regulation 20 is expressed to be subject to Regulations 19A and 22 and deals with permitted site coverage limiting it "depending on the height of the buildings" by reference to the question whether the proposed building is to stand on a class A site, a class B site or a class C site.

21. Regulation 21 deals with permitted plot ratio and limits it in the same manner. There is no use of the word "street" in either of these Regulations, but the use in both of the phrase "depending on the height of the building" is a reference back to Regulation 16 in which "street" (when, but only when, used in the formula for the ascertainment of street shadow area) means a street or service lane at least 4.5m. wide.

22. Regulation 22 deals with cases where part of the lot in question has been dedicated to the public with the consent of the Government or part abutting on the street, has been acquired by Government for the purposes of street widening, in which case the permitted site coverage and plot ratio may be exceeded in manner prescribed.

23. Regulation 23 reads as follows -

24. Mr. Barlow's argument in support of the contention that even before the amendment to Regulation 2(1) of the Building (Planning) Regulations the appellant did not have a class C site is, he assures us, summarised in paragraph 3 of a letter quoted by Trainor, J. in Cheong Ming Investment Co. Ltd. v. Attorney General. This reads -

'In these Regulations unless the context otherwise requires words and expressions have the meaning attributed to them by the Building Ordinance.'

And that in his opinion Regulation 23(1)(c) is an example of the context otherwise requiring."

25. In furtherance of the argument contained in that letter, Mr. Barlow emphasized the opening words of Regulation 23(1) and the general structure of that Regulation and the existence fo a semi-colon after each sub-paragraph of it. He contended that it was plain that each of the three sub-paragraphs expresses a separate and distinct concept because the draftsman had separated the opening words from each sub-paragraph following.

26. As I see it this is to place too great an emphasis on the structure and punctuation (as distinct from the wording) of the Regulation and too little on the Regulations in their entirety. Distrust of punctuation as an aid to interpretation stems from the historical fact aht before 1850 there was no punctuation in the manuscript copy of an act which received the Royal Assent. In Re Allsop⁽²⁾ the effect of a proviso to Section 8(1) of the Trustee Act 1888 fell to be considered. Hamilton L.J. observed -

"The proviso is an answer if the case is rested on paragraph (b). Grammatically and logically it is equally a proviso upon paragraph (a) though as printed in the Law Reports Edition of the Statues" (which incidentally were supplied to the Council of Law Reporting by the King's printers and did not pass through any editors' hands (see p.15)). "it is by typographical arrangement and by punctuation restricted to (b)."

27. And it appeared that he was prepared to hold that the proviso applied to paragraph (a) as well as to paragraph (b). In I.R.C. v. Hinchy⁽³⁾ Lord Reid regarded it as "very doubtful" if punctuation in modern acts can be looked at. When one looks at Regulation 23, ignoring the dash, the semi-colons and the indentation of the paragraphs and remembering, as both the trial judge and Trainor, J. pointed out, that the suggested effect of paragraph (c) would makes nonsense of Regulation 19, it seems clear that paragraph (c) is used to qualify "street" where that word is used in paragraph (a) and not where it is used in other regulations. I would therefore hold that at the time of his application the appellant had a class C site which, were it not for Section 23 of the Interpretation Ordinance, would have been taken away from him by the amendment of Regulation 2(1). He was entitled to have his plans considered on the basis that he had a class C site and the Building Authority had no right to reject them on the basis that his site was a class A site.

28. The final contention of the respondent was that the declarations sought should not be made in any event "as the Building Authority's refusal of approval to the plans" was based on two grounds, one of which (namely, failure to show the approval of the Director of Fire Services to the plans) has not been challenged so that it would be inefficacious to make the declarations sought". The trial judge does not deal with this question at all in his judgment. This is perhaps because, as appears from page 42 of the record of appeal (page 18 of the judge's notes), Mr. Widdicombe when met with this argument in the Court below remarked that it was common that the Fire Services Certificate should follow the original application and that no new application was regarded by the Building Authority as necessary in cases which otherwise complied with the Regulations. Mr. Widdicombe suggested that the certificate was a formality and that the substantive question could first be decided. At page 48 of the record Mr. Widdicombe is shown to have submitted by consent the comments of the Fire Services Department upon his application and to have pointed out that the objections from the Fire Services were easily remedied and that his clients relied on the practice of the Building Authority not to require a fresh application. Mr. Barlow was not then and was not before us in a position to confirm or deny these instructions received by Mr. Widdicombe and argued that the Building Authority was "entitled to refuse relief" under Section 16(1)(b). I take it that in saying that the Building Authority was entitled to refuse relief he meant that in strict law as distinct from the usual practice of the B.O.O. the Building Authority was entitled to reject the plans on the basis of the absence of the Fire Services Certificate and was entitled not to resile from that position even when supplied with the Certificate. This may be so although it appears bureaucratic. But in the Court below Mr. Widdicombe and before us Mr. McPherson argued that a declaration that the appellant was entitled to have his plans considered on the basis that he owned a class C site could not do any harm to the Crown and might well be of assistance to his client. In my view he had owned a class C site and had an accrued right to have his application considered on that basis. The Building Authority denied that his site was a class C site and denied that he had that accrued right. I think the denial entitles him to a declaration. I would allow this appeal, grant a declaration to the effect that the Building Authority was not empowered to reject the plans submitted by the plaintiff on the ground that the site was a class A site and not a class C site within the meaning of Regulation 2 of the Building (Planning) Regulations. I would order that the Respondent should pay the costs here and below.

Cons, J.A. :

29. By reason of Section 14 of the Buildings Ordinance Chapter 123, no person may commence or carry out any building works without the prior approval of the Building Authority. Section 16 sets out the particular circumstances in which that approval may be refused. Some allow for the exercise of discretion by the Authority, e.g. that the proposed access to the street will in his opinion be dangerous to traffic using the street : para. (h). Others do not, e.g. that the building works would contravene the provisions of the Ordinance or of any other enactment : para. (d). Should the Authority not notify his refusal within 60 days of the submission then the Authority is deemed to have given his approval : Section 15(1) and Regulation 30(3) of the Buildings (Administration) Regulation.

30. On the 8th of September, 1979 the plaintiff company submitted plans to the Authority in respect of a proposed development in Shun Ning Road, Kowloon. It was to be a 14-storied building, with shops on the lower floors and residential flats above.

31. The plans had of course not been prepared, so to speak, in vacuo. The architect would have had regard to the various building regulations, and in particular, as far as this appeal is concerned, to those which deal with height, site coverage and plot ratio. Those regulations are to be found in Part III of the Building (Planning) Regulations. They contain rules, formulae and tables of percentages to cover most cases. There is an exception where the proposed building will not abut onto any street at all or only onto a street or streets that are less than 4.5 metres in width. In that case Regulation 19 gives the Authority complete discretion.

32. Regulation 19

"Where a site abuts on a street less than 4.5 m wide or does not abut on a street, the height of a building on that site or of that building, the site coverage for the building or any part thereof and the plot ratio for the building shall be determined by the Building Authority."

33. I would assume, although I may be wrong, that these circumstances are unusual, and that when they do exist then, before any building or redevelopment is seriously considered, the Authority is asked in advance for what might be called a "one off" determination.

34. In normal cases, the three matters of height, site coverage and plot ratio are determined respectively by Regulations 16, 20 and 21.

35. Regulation 16(1)

"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."

36. Subrule (2) provides a formula to discover the maximum permitted street shadow area. Subrule (3) provides another formula by which that area may be increased "where the building abuts, fronts or projects over two street forming a corner". By subrule (4) "'street' means a street or service lane at least 4.5 m wide".

37. Regulations 20 and 21 both operate in a similar fashion. They relate the actual height of the proposed building to the particular class of site on which it will stand and by means of a table scheduled to the regulations the maximum site coverage or plot ratio, as the case may be, is discovered.

38. Sites fall into one of three classes as defined in Regulation 2(1). On the 8th of September, 1979 the appropriate part of that subrule read as follows :

39. The class of his site is important to anyone who wishes to develop or redevelop his property, for the scheduled table treats class B sites more favourably than those of class A, and class C most favourably of all.

40. The plans which the plaintiff company submitted on the 8th of September were based on the premise that the site was a class C site. It abutted on 3 streets and although 2 of those streets were less than 4.5m in width, there was a judgment of Trainor J. that it did not matter : Cheong Ming Investment Co. Ltd. v. Attorney General ⁽¹⁾.

41. Before the Authority considered the plans which the plaintiff company had submitted, the actual wording of Regulation 2(1) was changed. The words which have set out above were replaced by :

The amending legislation was published in the Gazette on the 12th of October. It bore the date of the 9th of October. Shortly afterwards, i.e. on the 19th of October, the Authority rejected the plaintiff company's plans. He gave his reasons, as he is in effect required to do by Section 15(1). One of these reasons given was that the permitted plot ratio and site coverage were exceeded. The Authority referred to Regulation 20 and asked the plaintiff to note that the site was a class A site. It would seem that he was applying the new definitions.

42. The plaintiff company, by way of an originating summons, asked the Court to say that the Authority was wrong in that approach. The summons came on before Bewley J. who declined to grant either of the declarations asked for. Both were to much the same effect and before us. Counsel is content to seek only the first :

Was the site a Class C site?

43. In coming to his decision, Bewley J. made four findings, three of which are challenged before us by one party or the other. His first finding was that on the 8th of September, 1979 the site in question was a class C site. In this respect he did not simply follow the decision of Trainor J. He felt impelled to review the earlier judgment, but having done so, was constrained to admit that he could find no fault in the learned Judge's reasoning or with his conclusion.

44. Counsel for the Attorney General does not agree. He says that Trainor J. overlooked the interplay of Regulations 16 and 23(1) and in particular ignored the opening words of the latter which reads in whole as follows :

45. As I understand the argument of Counsel, it is that the opening words - "for the purposes of Regulations 19, 20, 21 and 22" - must be taken to apply to each paragraph separately, and that although the word "street" is not actually mentioned in either Regulation 20 or 21, it is implied into them by their references to the classes of site, which classes are themselves defined in Regulation 2(1) in terms which do contain the word "street". Thus, it is said, for the purposes of the scheduled table the class of site can only be determined in accordance with streets that are 4.5 m or more in width, and the site in question was therefore, even on the 8th of September, only of class A.

46. Counsel attempted to draw support from the explanatory memorandum attached to the notice in the Gazette :

"The Building (Planning) Regulations classify sites by reference to the streets on which sites abut. These amending regulations make clear that in classifying sites for the purposes of the regulations streets of less than 4.5 m wide are to be disregarded."

47. This indicates, he says, that the "amendment" was intended to be declaratory of the then existing law rather than to effect any change therein.

48. For my part I would doubt that. Clarifying legislation is usually introduced by words such as "for the avoidance of doubt". In any event on the 9th of October, there was no doubt. Any doubt that had existed earlier had been disposed of by Trainor J.

49. For my part I am not prepared to accept that by reason of the opening words of Regulation 23(1) paragraph (c) thereof must necessarily be applied to each of the Regulations 19, 20, 21 and 22. Indeed, however one tries, it cannot be made to apply to Regulation 19. Trainor and Bewley JJ. both took the view that it only applied to 23(1)(a). I would respectfully agree. Regulation 23(1) is concerned with measurement, not with classification. I see no reason why it should in anyway be taken to restrict the definition of sites given in Regulation 2(1). In my opinion, the site of the plaintiff company was, as at the 9th of September, a class C site.

When did the amendment take effect?

50. The second finding of the learned Judge below was that the amendment to the definition took effect from the 12th of October, i.e. before the plaintiff's application was considered by the Authority. This is challenged by Counsel for the plaintiff. He draws our attention to Section 38(1) of the Ordinance, which empowers the Governor in Council to make regulations, and then to subsection (5) :

51. Counsel suggests that this is itself a sufficiently comprehensive code of publication to oust the general provisions of Section 20 of the Interpretation & General Clauses Ordinance, Cap. 1 which influenced the Judge below.

52. I would accept Counsel's argument thus far. But he then goes on to suggest that the proper construction of subsection 5 is that although the Governor in Council has power not to publish at all, in which case the regulations become effective as soon as they are made - a situation designed to cover the dire emergency - if he does in fact publish in the Gazette then the regulations cannot in any event become effective within a period less than 3 weeks thereafter.

53. In my opinion that cannot be so. If, when the Governor in Council dispenses with the publication normally required, the regulations come into effect immediately, that effect cannot be retrospectively removed or stayed because the Governor in Council later gives notice of what he has already done. The construction suggested is too strained. The conclusion of the Judge below is correct.

Was there an "accrued" right?

54. If then the amended definitions became operative before the Authority considered the plaintiff company's plans, did the plaintiff company have any accrued right or privilege that survived the amendment?

55. Section 23 of the Interpretation and General Clauses Ordinance Cap. 1 provides :

56. The judge below found that the plaintiff company had no accrued right or privilege, at most the company had only a hope or expectation. In this respect he followed the decision in D.P.W. v. HO Po Sang⁽²⁾, a decision of their Lordships of the Privy Council on appeal from this jurisdiction. It concerned not the approval of plans by the Building Authority but the issue of a Rebuilding Certificate by the Governor in Council.

57. Under particular legislation prevailing until the 9th of April 1957, the Director of Public Works might in certain circumstances give notice that he intended to issue a Rebuilding Certificate. If so, and no objection was taken by the tenants or subtenants of the building concerned, the landlord would in due course be able to obtain vacant possession despite the security of tenure given to tenants and subtenants by the Landlord and Tenant Ordinance. On the other hand, the tenants and subtenants could apply by way of petition to the Governor in Council that the certificate be not issued. The landlord could then cross-appeal There was no formal hearing of the appeal but the law provided that "every petition and cross-petition and cross-petition lodged in due time shall be taken into consideration by the Governor in Council who may direct that the Rebuilding Certificate be given or be not given as he may think fit in his absolute discretion".

58. In July 1956 the Director gave notice of his intention to issue a Rebuilding Certificate in respect of premises in Temple Street, Kowloon. The tenants and subtenants appealed by way of petition to the Governor in Council. The landlord cross-appealed. However, no decision had been taken by the Governor in Council before the 9th of April 1957 when other legislation repealing the particular provisions came into effect. No provision was made for consideration to be given to pending petitions or cross-petitions or to permit the subsequent giving of a Rebuilding Certificate.

59. The landlord relied upon Section 10 of Interpretation Ordinance which was in the same words as Section 23 above. He put forward two submissions. The first was that "after the Director had given notice of his intention to give a Rebuilding Certificate, some kind of right (even though one that might be defeated) to such a certificate was then "acquired by" the landlord. Their Lordships did not accept that submission. In their view the landlord had no "right". He had no more than a "hope".

"The position on April 9th, 1957 was that the (landlord) did not and could not know whether he would or would not be given a Rebuilding Certificate. Had there been no repeal, the petition and cross-petition would in due course have been taken into consideration by the Governor in Council. Thereafter there would have been an exercise of discretion."(3)

60. The second submission was that on the 9th of April the landlord had an accrued right to have the matter taken into consideration by the Governor in Council and that if the Governor in Council should think fit subsequently to order the issue of a Rebuilding Certificate - as in fact he did - the accrued right of consideration would be sufficient to give full validity to the certificate.

61. Their Lordships rejected that submission by the same token.

"On April, the 9th, the landlord was quite unable to know whether or not he would be given a Rebuilding Certificate, and until the petition and cross-petition were taken into consideration by the Governor in Council no one could know. The question was open and unresolved. The issue rested in the future. The lessee had no more than a hope or expectation that he would be given a Rebuilding Certificate even though he may have had grounds for optimism as to his prospects."(4)

62. There can be no doubt that the decision of Bewley J. in the present instance was correct if the only right which could have accrued to the plaintiff company was - as Counsel for the Attorney insists - a right to have its plans totally approved. That is squarely within the decision of HO Po Sang.

63. However, Counsel for the plaintiff company has been assiduous to point out that he does not seek to establish such a right. He seeks only that the plans should be considered on the basis that the site is a class C site, as it was at the time they were submitted. He argues that this would not be inconsistent with their Lordships' views in HO Po Sang, but would in fact follow naturally from what their Lordships said. When the plaintiff company submitted its plans on the 8th of September, what kind of site it had was not a question that remained "open and unresolved". It was not "an issue that rested in the future". The plaintiff company could and did know that it had a class C site. It could and did discover this by reference to the regulations as they stood. The Authority was bound by those regulations as much as was the plaintiff company. Regardless of how he might exercise his discretion in relation to other matters which he had to consider, the Authority had no discretion whatsoever in relation to the class of site. In that particular respect, the company therefore did have an accrued right. That is all that is claimed.

64. Counsel for the Attorney argues that no right can be a "accrued right" for this purpose unless it be such as can by itself be enforced as a right of action, and he suggests that because of the other matters still residing in the Authority's discretion the "right" claimed in the present instance does not pass the test.

65. With every respect, that answer misses the point of the plaintiff's claim. That claim does not touch upon discretion. It is content to leave the Authority to exercise his discretion as he think fit, provided that he does so in accordance with law. It contends however that he has not done so, that by applying the 'new' definition to the plaintiff's application he has made a mistake in law. And it is that mistake in law which the plaintiff company asks the Court to correct, nothing more.

66. The Judge below appears to have been influenced to some extent by Section 39(1) which provides :

He said "If the Governor in Council feels that plans in the pipeline should not be prejudiced, he may authorize the Building Authority to approve them in accordance with the old law".

67. With respect I think he proceeded on a misreading of the section, which, as I understand it, would apply to plans submitted only after a regulation had come into operation.

68. In my opinion the argument for the plaintiff company is sound. Section 14 deprives a person of his natural right to build what he likes on his own land, but it gives him a right to build to particular dimensions. Those dimensions are not, except in Regulation 19 cases, fixed at the discretion of the Authority. They are predetermined by the Regulations, that is, by the classification of the site in conjunction with the scheduled table. They do not stem from the exercise of a discretion, as did the Rebuilding Certificate in HO Po Sang.

69. It may be that on consideration of plans based on those predetermined dimensions the Authority will have good cause to reject them. And it may be that in some cases the exercise of that power will in fact result in a further restriction upon size. But that is a different question. The Authority has no right to interfere directly. The original dimensions are something given to the owner by law. If he assert his claim before the law is changed, then in my view he has an "accrued right" within the Interpretation Ordinance. With respect to the learned Judge I think he was wrong on this point.

70. A final point remains. By a respondent's notice the Attorney General seeks to uphold the decision on the ground that equity will not act in vain, that a further consideration of the plaintiff company's application would be useless because the application was not originally accompanied by a certificate from the Director of the Fire Services. This is a ground of refusal expressly mentioned in Section 16. The Authority drew attention to this in his letter of rejection and enclose a copy of the Director's comments.

71. Counsel further referred us to Section 15(2) :

and the final words of the Authority in the same letter "As major revision of your proposal is envisaged, my above comments are not intended as exhaustive".

72. The fire precautions point was raised in the Court below, but not dealt with by the learned Judge. Counsel for the plaintiff company met it at that time by reference to what he alleged was the standard practice of the Authority in such circumstances, i.e. not to withhold the approval at the outset but to deal with the Director's comments piece by piece as the building progressed. Counsel for the Attorney was not able either to confirm or to deny the existence of the practice. Now, some 3 months later, he is still in the same position. Counsel for the plaintiff company is confident that if the declaration were granted the plaintiff company would have no substantial difficulty in resolving the question of fire precautions or any other matter causing anxiety to the Authority. For my part I am prepared to let the company try.

73. For these reasons, I would allow the appeal and grant the single declaration that is now sought.

Zimmern, J.A. :

74. In this appeal it will be convenient first to set out the chronological order of events.

The Gazette shows the following explanatory note :

"The Building (Planning) Regulations classify sites by reference to the streets on which sites abut. These amending regulations on which sites abut. These amending regulations make clear that in classifying sites for the purposes of the regulations streets of less than 4.5 m wide are to be disregarded."

Prior to the amendments the regulations read :-

3. On the 19th October 1979 the Building Authority refused the appellant's application on two grounds namely :-

75. By an originating summons dated 10th June 1981 the appellant applied to the High Court claiming the following reliefs :-

76. The matter was heard before Bewley J. commencing on the 9th June 1980 and in a reserved judgment dated the 8th July 1981 the learned judge applying D.P.W. v. Ho Po Sang⁽¹⁾ refused the 2 declarations sought.

77. The appellant now appeals before us on the following grounds :-

78. The Attorney General by a respondent's notice seeks to contend that the judgment be affirmed on grounds additional to those relied on by the Court below namely :-

The Site

79. It is a common ground between the parties that the site in question is rectangular in shape and on 3 sides it abuts on a) to the North a service lane 3.050 metres in width, to the east a service lane of the same width and to the south Shun Ning Road 18.290 metres in width. By definition a street includes a service lane.

80. One of the questions in this case is whether the appellant was at material times entitled to say they had a Class C and not as the Attorney General contends a Class A site. The importance of this is that on a Class C site the intended building is entitled to a greater site coverage and gross floor area than a Class A site.

The Amending Regulations

81. Mr. MacPherson for the appellant claims the definition section on the 8th September 1981 was loud and clear that the site was a Class C site when the plans were submitted for approval. Further on 6th July 1979 in M.P. 1979 No. 250 (unreported) Trainor J. had declared in a similar application that a site abutting on to the north an intended road 14.30 metres in width and to the east a lane 4.45 metres in width was a Class B site. The decision is directly in point on the construction of the Ordinance and the Building (Planning) Regulations made thereunder as at the 8th September 1979. There was no appeal from that decision. Instead the Governor in Council took the step of amending the regulations on the 9th October. I cannot let this pass without expressing my dismay at the explanatory note asserting that the amending regulations were to make clear that in classifying sites for the purposes of the regulations streets of less than 4.5 metres wide are to be disregarded. With respects to the Department responsible for the note for the Governor in Council those regulations have been interpreted by the High Court and it is not open to the legislature to challenge that interpretation. There was nothing to make clear as the judgment was clear. The amending regulations were amendments simpliciter and I cannot accept the contention of Mr. Barlow for the Attorney General that the amending regulations were declaratory. He now asks us to say that Trainor J. was wrong. That, of course, he can do.

The Date the Amending Regulations Came into Effect

82. The appellant contends that the amending regulations came into effect on 31.10.79 whereas the Attorney General says 12.10.79 the date they were gazetted. This turns on the interpretation of the Ordinance.

83. Section 38(1) empowers the Governor in Council by regulation to provide for, inter alia, planning and buildings and subsection (5) provides "Such regulations shall be published once in the Gazette at least 3 weeks before coming into operation : Provided that where the Governor in Council deems it expedient such publication may be dispensed with."

84. Mr. MacPherson argues that Section 38(5) specifically provides for a publication at least 3 weeks before coming into operation and the proviso in the sub-section only empowers the Governor in Council not to publish at all. Therefore he says by the fact of publication in the Gazette on the 12th October 1979 the amending regulations only came into operation three weeks thereafter i.e. 30th October 1979. I am unable to accept this argument. The amending regulations were expressly made under Section 38 and were so gazetted. I interpret that proviso to empower the Governor in Council, if he think it expedient in any given case, to dispense with publication in the Gazette at least three weeks before coming into operation. The proviso does not empower dispensation of any publication but only "such publication" under Section 38(5). The Governor in Council did so dispense with such publication. Accordingly I find the amending regulations came into effect on the 12th October 1981. This then disposes of the issue that if the effective date was 30th October 1979 the Building Authority would have had no power to refuse the plans under his ground (a).

Was the Appellant's Site a Class A Site or a Class C Site on 8.9.79

85. The learned judge found the amending regulations were not retrospective and there is no appeal from that. Mr. Barlow for the Attorney General submits that under the regulations existing on 8.9.79 the site was a Class A site and Trainor J. in Cheong Ming Investment Co. Ltd. v. Attorney General M.P. 1979 No.250 (unreported) was wrong and the judge in the Court below in following Trainor J. and finding the site to be a Class C site on 8.9.79 was also wrong. I have set out the definitions of the site classifications as they stood in the regulations prior to the amendments and in order to review the 2 decisions in respect of this matter it is necessary to set out the whole of regulation 23(1) which reads as follows :-

"For the purposes of regulations 19, 20, 21 and 22

86. Mr. Barlow says the basis of his arguments are as follows :-

87. He says that is the only way effect can be given to the Regulations and though Regulation 23(1) cannot be applied in that manner to Regulation 19 nevertheless the language of the regulation "is plain and unambigious it must be enforced although it should lead to absurd or unjust results." (per Lord Salmon in Lai Man Yau v. The Attorney General (No.2).⁽²⁾

88. As I see them :-

89. I do not need to venture into Regulation 22.

90. Regulations 20 and 21 have three factors in common, height, site class and whether domestic or otherwise. There is no dispute about the third factor for the purposes of argument in this case and assuming the classification of the site to be as defined in Regulation 2 in September 1979 then clearly nothing turns on any Class A site if the street it abuts over is less than 4.5 metres wide for it will be caught by Regulation 19. This controversy can only arise in respect of a Class B site where one of the streets is less than 4.5 metres wide and in respect of a Class C site one or two of such streets. There is this in common, each class must abut on to at least one street of not less than 4.5 metres.

91. Having gone through the necessary regulations in some detail, I find Mr. Barlow's arguments quite untenable. Where Regulation 16 provides the formula for ascertaining the maximum permitted height for a building abutting on to one or two streets of at least 4.5 metres wide, Regulation 23(1)(a) and (c) directs how height is to be measured in relation to such streets. One of the common factors in both Regulations 20 and 21 is height. What Regulation 23(1) clearly means is that for the purpose of measuring the height under Regulations 20 and 21, Regulation 23(1)(a) and (c) applies. Mr. Barlow could not apply Regulation 23(1)(a) and (c) to Regulation 19. In my view Regulation 23(1)(a) and (c) have no application to Regulation 19 at all, but it is Regulation 23(1)(b) which applies for under Regulation 19 the Building Authority determines the plot ratio from which the gross floor area is ascertained and 23(1)(b) provides the method of measuring that gross floor area. Of course 23(1)(b) also applies to Regulation 21. Any application of 23(1)(c) by itself to Regulation 19 will create an absurdity.

92. The above is sufficient to refute Mr. Barlow's contentions and I am quite unable to give Regulation 23(1)(c) that element of elasticity by which it can stretch directly or indirectly to catch and affect the site classifications in the regulations. I would dismiss the Attorney General's cross appeal contending that the Cheong Ming Investment Co. Ltd. was wrongly decided and hold that on the date of submission of the plans the appellant held a Class C site.

The Effect of holding that the site was a Class C site on 8.9.79

93. At law in Hong Kong every Crown lease holder is entitled to build whatever he likes on his land subject to the Crown Lease and Ordinance. I think it is common ground in this case that the appellant's entitlement to build in accordance with the plans submitted by it is governed by the Buildings Ordinance and the regulations made thereunder.

94. By Section 14 of the Ordinance no person shall commence or carry out any building works without having obtained from the Building Authority his approval in the prescribed form of documents submitted to him in accordance with the regulations.

95. By Section 15 the approval is deemed to be given unless within 60 days refusal is notified in writing setting out the ground for such refusal.

96. Section 16 sets out 16 grounds on which the Building Authority may refuse his approval of any plans of buildings. Some of them appear to give the Building Authority a discretion.

97. The appellant on 8th September 1979 submitted to the Building Authority for approval under Section 14 the plans for the building on a Class C site as I have found it then was.

98. On the 9th October 1979 the Governor in Council lawfully amended certain regulations effective 12th of October 1979 as I have found whereby the appellant's site would be defined as a Class A site.

99. On the 19th October 1979 the Building Authority refused the application on a ground with which we are concerned in this particular issue namely that the site was a Class A site by reason of the amending regulations.

100. The question is whether the appellant had a right on 8th September 1979 and if he had what effect the amending regulations had if any on that right.

101. Bewley J. in the Court below applying the Privy Council case of D.P.W. v. Ho Po Sang⁽¹⁾ held "that the scrutineering process required of the Building Authority followed by the exercise of his discretion reduced the plaintiff's application to something short of an accrued right." He decided therefore that the appellant having no accrued right under Section 23 of the Interpretation and General Clauses Ordinance which reads in part :-

"Where an Ordinance repeals in whole or in part any other Ordinance, the repeal shall not -

the amending regulations were effective to change the classification of the site from C to A and the Building Authority was right in refusing on that ground.

102. In the Ho Po Sang case the Board concluded on the facts no right existed or had accrued and the intended investigation which had not taken place before the time of the repeal was an investigation in order to decide whether a right should or should not be given whereas if a right existed prior to the repeal and the investigation was in respect of it then the right was unaffected. The question in instant case is whether the appellant had an accrued right at the date of submission of its plans and if it had what was the right. As I have said the appellant was and is a Crown lessee of the land at law and subject to the Crown lease and Ordinance it has a right to build on its land. To exercise that right the Buildings Ordinance requires it to submit its plans under Section 14 for investigation. The Building Authority is the statutory body appointed to investigate such submission and he has a statutory duty so to investigate for under Section 15, if he does not refuse and he can only refuse for cause though given a certain amount of discretion, 60 days thereafter the Building Authority will be deemed to have consented. As I see the picture I find it impossible to say that at the date of submission the appellant did not have an accrued right to have its plans based on a Class C site investigated by the Building Authority. That right was unaffected by the Amending Regulation by reason of Section 23 of the Interpretation Ordinance. The Building Authority could only refuse for cause and under ground (a) he did not refuse for cause but on a wrong view of the law and with no disrespect I am unable to uphold the learned judge's conclusion on this issue. InHeston and Isleworth Urban Districk Council v. Grout⁽³⁾ which concerned the validity and effect of a notice served under a Section of an Act of Parliament which was subsequently repealed, Lindley L.J. at p.311 said :-

"We have then to determine what effect S.25 has upon the notice. It would then be, I think, a very strange and forced construction to say that the notice would have to be dropped and that everything done under it would have to be done over again under a fresh notice. I should not think that was right even without the aid of the Interpretation Act."

I adopt the reasoning of learned Lord Justice and say it cannot be right that an intending developer who must have spent time and money on his plans after submission to the Building Authority can be told that the Governor-in-Council through the process of instant amending regulations has rendered his plans abortive and he must therefore start all over again. Mr. Barlow misconceived the appellant's case. Mr. MacPherson never claimed that his client had a right to have its plans approved as a Class C site. He said the appellant had an accured right at the date of submission to have its plans considered and investigated as a Class C site which it then was and remained unaffected by the amending regulations.

103. I now turn to the final issue, the 2nd ground of the Attorney General's cross appeal.

104. Mr. MacPherson hardly entered the arena in this issue. He asked the Court for leave to amend the second declaration sought by adding the words "in so far as it is" which was granted and the amendment made forthwith. That was sufficient to dispose of that cross-appeal.

105. Mr. Barlow's contention is that even if the Building Authority were wrong on ground (a) of his refusal he had a right to refuse the plans on ground (b). As the declarations sought are discretionary the Court ought not to grant a relief which serves no useful purpose as the submission has been lawfully refused on ground (2). I find this quite unrefreshing but we are not asked by the appellant to concern ourselves with the refusal on the 2nd ground. The declarations sought are clear about that.

106. I would also dismiss the 2nd ground of the cross appeal and allow the appellant's appeal and grant the 1st declaration sought with costs here and below.

Representation:

Mr. MacPherson Q.C.,Mr. K. Bokhary, (Woo, Kwan, Lee & Co.) for plaintiff.

Mr. Barlow and Mr. P.T. Nunn, Senior Crown Counsel, for defendant.

(1) (1961) A.C. 901

(2) (1914) 1 Ch. 1

(3) (1960) A.C. 748 at 765

(1) H.C.A. No. 250 of 1979, unreported.

(2) (1961) A.C. 901

(3) at page 920

(4) at page 921

(1) [1961] A.C. 901.

(2) [1978] H.K.L.R. at p.548

(3) [1897] 2 Ch. 306.