Union Carbide Asia Ltd and Another v. The Appeal Tribunal and Another

HCMP000136/1989

[An authourised person under the Buildings Legislation has no standing to complain in his own right of a decision against his employer.]

M.P.No. 136 of 1989

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(MISCELLANEOUS PROCEEDINGS)

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BETWEEN

Coram: Godfrey J

Date of judgment: 22nd June 1989.

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J U D G M E N T

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1. This is an application for judicial review of certain decisions of the Building Authority, and of the Buildings Appeal Tribunal, constituted under the Buildings Ordinance, Chapter 123 ("the Ordinance"). The applicants are union Carbide Asia Ltd. ("UCA") and Choy Bing-wing ("Mr Choy"). UCA is the owner of oil storage installations at Shum Tse Street, Sham Tseng, New Territories. The oil storage tanks which are part of these installations are in need of extensive repairs. Mr Choy is retained by UCA in connection with these works and is the "authorised person" nominated for the purposes of the works under the relevant provisions of the Ordinance.

2. In order to explain the applicants' complaints, I must first outline the legislative background against which they are made.

3. The Ordinance is concerned with "building works", defined as including repairs. It defines "new building" so as to include an existing building which is altered to such an extent as to necessitate the reconstruction of not less than one - half of the superficial area of the main walls. (These definitions are contained in section 2(l), which contains a large number of other definitions as well.)

4. Part I of the Ordinance provides, among other things, for the constitution of an authoised person's register, including a list of registered structural engineers (see section 3). An authorised person appointed or nominated to act in connection with building works assumes considerable responsibilities under the legislation (see for example, section 4(3) and the whole of Part V of the Ordinance, and Regulation 12 of the Buildings (Administration) Regulations mentioned below).

5. Part II of the ordinance provides for the control of building. You cannot, generally speaking, commence any building works without having first obtained from the Building Authority his approval, in the prescribed form, of documents submitted to him in accordance with the regulations made under the Ordinance (see section 14). The Building Authority may refuse to approve the plans of any building works in a variety of circumstances, set out in section 16(1). So far as presently material, he may do so where the plans have not been certified by the Director of Fire Services (this is case (b)); or where in his opinion it is necessary for him to have further particulars of such plans or of the building works shown thereon, to enable him fully to consider such plans (this is case (i)); or where such further particulars, etc., are not to his satisfaction (this is case (j)). Where the Building Authority is asked to approve plans of building works in connection with an existing building which would result in a new building, he may impose conditions or requirements for the purpose of making such new building comply with the standard of structural stability and public health established from time to time by regulations (see section 17). Such regulations may be made providing for the design and construction of oil storage installations (see section 38(1)(ia)).

6. Part V of the Ordinance provides for certain exemptions from its provisions. Repairs not involving the structure of any building may be carried out without application to or approval from the Building Authority (see section 41(3)). In special circumstances, the Building Authority may on application permit modification of the provisions of the Ordinance (see section 42(1); but the section does not apply to section 14 :see section 42 (5)).

7. Part VI of the Ordinance provides for the constitution of an appeal tribunal, for the purpose of determining appeals by persons prejudiced by a decision of the Building Authority, in the exercise of his discretion, in respect of any matter or thing which is by the Ordinance made subject to the exercise of such discretion. The determination of the appeal tribunal is final and is not (except in one immaterial case) liable to be set aside for irregularity or error in matter of form (see section 46(1)). If it appears to the appeal tribunal, after due consideration of any appeal, that no good cause has been shown why an inquiry should be held, it may refuse to order an inquiry (First Schedule, para. 2).

8. The Ordinance is supplemented by the Building (Administration) Regulations. Under these regulations every prescribed document must be clearly and correctly completed to supply the information required thereon (see regulation 7). The Building Authority may, where he considers it necessary, require additional plans or such other particulars as he may consider necessary (see regulation 10).

9. Special regulations have been made relating to oil storage installations. These are the Building (Oil Storage Installations) Regulations. These regulations refer to "the Code of Practice" defined in regulation 2(1) as the "Code of Practice for the Design, Construction and Maintenance of Oil and Petroleum Feedstock Installations" published from time to time by the Building Authority (and originally published about 1978). Oil storage installations must be designed and installed to minimise risk of pollution; and if the installation is designed and constructed in accordance with the Code of Practice, it will be deemed to be designed and constructed so as to minimise such risk (see regulation 3). Except in case of emergency, you cannot repair an oil storage tank without the written authorisation of the Building Authority (see regulation 10). Where the repair works are extensive, you have to have approval for them under section 14 of the Ordinance (see paragraph 5 of the Buildings Ordinance Offices Practice Note, No. 48, for authorised persons and registered structural engineers, which is concerned with oil storage installations; and see also the decision of the appeal tribunal in case no. 14-87).

10. I revert to the Code of Practice. Its primary objective is to reduce the risks of environmental pollution. Reducing fire and explosion hazards are the responsibility of the Director of Fire Services, although some degree of overlap is inevitable (see paragraph A. 1.2 of the Code of Practice).

11. There is another code, the Institution of Petroleum Marketing Safety Code ("the IPMS Code") to which reference is made in the Code of Practice (and which is, I think, of about the same age). Tank spacing and safety distances are dealt with; and are governed primarily by requirements of fire protection and fire fighting. The layout, it is said, should meet the requirements of the Director of Fire Services; the recommended tankage layout and distances are set out in the IPMS code section 3.2.3. (See paragraphs B.1.2.2 and B.1.2.3 of the Code of Practice). The provision of the fire fighting installation should, it is said, be in accordance with the requirements of the Director of Fire Services. The details of the equipment lie outside the scope of the Code of Practice (see paragraph B.1.3).

12. Finally, I should mention (if only to show that I have not overlooked them) the Dangerous Goods Ordinance, Cap. 295 and the Dangerous Goods (General) Regulations made thereunder, which provide for a scheme of control over the storage of dangerous goods.

13. That is the legislative background. I turn now to consider (so far as material for present purposes) the factual background against which the applicants make their present complaints.

14. UCA's oil storage installations at Sham Tseng were constructed in about 1972, long before the coming into force of the Building (Oil Storage Installation) Regulations with their references to the Code of Practice (and its references to the IPMS Code). Before they were built, two drawings showing the proposed layout were submitted to the Building Ordinance Office of the Public Works Department (the then equivalent of the Building Authority) for approval. In the first of these, the safety distances and tankage layout were not shown; but the drawing was approved by the Building Authority on 24th September 1971. In the second of these, the safety distances and the tankage layout were shown; and the drawing was approved by the Fire Services Department on 4th March 1972.

15. The person responsible for these drawings was Mr Choy. He is a chartered civil engineer and is included in List II of the Authorised Persons Register and the Structural Engineers Register kept under the Ordinance.

16. Mr Choy has been retained by UCA as the authorised person and registered structural engineer responsible for maintenance works at these oil storage installations. His duties include advising UCA in relation to any necessary repair work. In respect of this work he is the person responsible for the design of the repair work; for obtaining the necessary written authorisation and approval; and for supervising the repair work at the construction stage.

17. By 1987, it became apparent to Mr Choy that works of extensive repair to the oil storage tanks had become necessary. He wanted written authorisation to carry out the repair works pursuant to regulation 10 of the Buildings (Oil Storage Installation) Regulations. (The proposed repair works require no supporting calculations. What is proposed is that the existing shell and roof plates are to be replaced by new ones which are of identical thicknesses and material. No change to the volume of the oil storage installations nor to any structural members is proposed. There will be no increase in loading on the existing structural members nor the existing foundations. There is nothing to be added to the existing oil storage installations and there is nothing to be altered either. The repaired tanks will be exactly the same size and shape as the existing ones; but the existing corroded steel plates (the complete tank shells) will have been replaced.)

18. On 8th December 1987, Mr Choy therefore submitted to the Building Authority 6 sets of building plans for the consideration and approval of the Building Authority. He submitted two sets of structural plans for the existing tanks, with dimensions converted into metric units. He pointed out that, under his proposals, no change would be made to the tank skeleton. The corroded shell and roof plates would be replaced by new shell plates of the same thickness and materials as those of the original tanks.

19. On 18th December 1987, Mr Choy accepted, in a telephone conversation with the Building Authority, that his plans were not prepared or intended to be a submission for approval under section 14 of the Ordinance. (The Building Authority took the view that building plans for the proposed work, which it described as involving "the demolition and replacement of the bottom and roof plates " would have to be submitted to and approved by the Building Authority under section 14 of the Ordinance. )

20. On 5th January 1988, Mr Chop resubmitted his drawings for approval under section 14 of the Ordinance. He asked the Building Authority to treat his letter of 8th December 1987 as still valid and pointed out to the Building Authority that "this is a repair job. A repair job must involve demolition and replacement works. Section 14 of the Buildings Ordinance applies to repair works."

21. On 8th January 1988, in a further letter, Mr Choy claimed that in his earlier dealings (in 1985) with the Building Authority on repair works, the Building Authority had not followed the legislative requirement of formal submission of plans and forms. He mentioned that the 1985 repair works were authorised by the Building Authority without approval under section 14 of the Ordinance. He accepted that, for any repair, demolition and replacement work would be involved. (For some reason which passes my understanding, he seems to have been anxious to challenge the validity of the action of the Building Authority in authorising the 1985 repair works without going through the formal requirements of section 14 of the Ordinance. In a different letter of 9th January 1988, addressed to the Principal Government Surveyor, he took the same point.)

22. On 13th January 1988, the Building Authority notified Mr Choy that it would process his drawings under the Buildings Ordinance; and that it would not treat Regulation 10 of the Building (Oil Storage Installations) Regulations as applying to the proposed works.

23. On 19th January 1988, Mr Choy came back to the Building Authority again challenging them to explain what authority they had to waive the requirements of section 14 of the Buildings Ordinance. (I remain completely at a loss to understand what use this demand could possibly have been to UCA, particularly since everybody had accepted that section 14 did apply to the works now proposed.)

24. On 21st January 1988, the Director of Fire Services informed Mr Choy that, in connection with his proposal (which is described as "alteration and addition - replacement of DOP tanks (T6, T7, T8 and T9 as coloured on plans)" the plan submitted by Mr Choy did not affect the fire services installation and equipment prescribed for the building. On 3rd March 1988, Mr Choy sent a copy of this letter to the Building Authority, claiming that it meant that the current Fire Services Certificate (which had been issued on 12th January 1984) was still valid.

25. On 4th March 1988, the Building Authority, in an important letter, set out his position in relation to the proposed works. He described these as "Proposed Replacement of Tanks No. BA24-6 to BA24-9 Shum Tse Street, Sham Tseng, N.T.". He referred to the application made by Mr Choy on 5th January 1988 and received on 6th January 1988 as being proposals in respect of "Alteration and Addition works (Building)". The Building Authority informed Mr Choy that his submission had been checked; that such checking had disclosed contraventions, which he went on to list; and that Mr Choy's proposal therefore was disapproved.

26. The "contraventions" were described in paragraphs 7 and 8 of the letter. I will set out these paragraphs in full:-

"7. Under Buildings ordinance section 1l6(1)(i) :-

(a) You are required to demonstrate that the design and construction of the proposed new tanks meet the standards laid down in the Code of Practice, in particular that the tankage layout and safety distances of the proposed new tanks meet the recommendations of the IPMS Code. Building (Oil Storage Installation) Regulation 3 refers. It is noted that the tankage layout and safety distances of the proposed new tanks have not been shown.

(b) Plans and details of the proposed new tanks should be shown. In this respect, please note that only reference layout plan showing the existing tanks are given on your submitted drawings.

8. Please clarify/ rectify the following :-

(i) Sizes of tanks in your layout plan do not agree with those in your view (B) and View (A),

(ii) Levels shown on your layout plan do not agree with the records kept in this Office,

(iii) Existing access steps to bunded area has not been shown,

(iv) Any proposed works to be carried out to the existing tank foundations should be shown on plan for my consideration. In this connection, it is noted that Item 4 General Notes of your structural submission differs from Note 4 of your plan Drawing No. RW1/1."

27. Mr Choy took the view that his proposed works were works of repair, and not of addition and addition. He took the view that Regulation 3 of the Buildings (Oil Storage Installation) Regulations was irrelevant. No design was required to minimise the risk of pollution; and matters of safety distance had nothing to do with the risk of pollution. He pointed all this out to the Fire Services Department (in a letter dated 7th March 1988) and to the Building Authority (in a letter dated 8th March 1988).

28. On 7th March 1988, the Building Authority, replying to the letter from Mr Choy dated 19th January 1988, to which I have referred above, drew the attention of Mr Choy to the distinction between the provisions of section 14(2) of the Buildings Ordinance, and Regulation 10(1) of the Building (Oil Storage Installations) Regulations. The Building Authority pointed out that, under certain circumstances, building works might be exempted from the provisions of section 14(l) of the Buildings Ordinance by virtue of section 41, whereas all repair works, except in case of emergency, to tanks and oil storage installations required the written authorisation from the Building Authority under Regulation 10(1) of the Building (Oil Storage Installations) Regulations. The Building Authority pointed out to Mr Choy that it therefore followed that, while minor repair works to oil storage tanks might be exempted from section 14(1) of the Buildings Ordinance, a written authorisation from the Building Authority would be required in any case.

29. On 11th March 1988, Mr Choy wrote to the Building Authority in terms which showed that he did not accept the reasoning of the Building Authority set out in the letter from the Building Authority dated 7th March 1988.

30. Further correspondence between the parties in March 1988, into which Mr Choy brought the Fire Services Department, failed to resolve the matter. On 25th April 1988, the Building Authority wrote to Mr Choy stating (not for the first time) that "his plans had been rejected under section 16(1)(i) of the Buildings Ordinance since more information is required as stated in paragraph 7 of my rejection letter dated 4th March 1988. Irrespective of whether the Fire Services Department had given its approval [as it had], I must be satisfied that the construction meets the standards laid down in the Code of Practice before I would approve your plans. Should you have submitted the required information upon the rejection, the plans should have been approved long ago:"

31. Mr Choy remained unsatisfied; arid, in a letter of 29th April 1988 to the Building Authority said so.

32. On 16th May 1988, the Building Authority replied to the letter from Mr Choy dated 29th April 1988. He did so under the head "Proposed Replacement of Tank" which had appeared as the heading on other letters passing between the parties. He said "First of all, I must state that the works proposed are considered to be new works and not repair works hence the current regulations will apply. As stated in my letter of 25th April 1988, besides the requirements of Fire Services Department, your plans must meet the recommendations of the Code of Practice. In this respect your plans did not contain sufficient information nor did they show any detail of the proposed new tanks. Hence they were rejected."

33. On 20th May 1988, Mr Choy replied to the letter from the Building Authority dated 16th May 1988. He referred to that letter, in which the Building Authority had said that it considered the work's to be new works, and that hence current regulations would apply; and also to the Building Authority's letter dated 25th April 1988, in which the Building Authority had stated that the plans would have been approved long ago if adequate information as demanded and detailed in the Building Authority's rejection letter dated 4th March 1988 had been furnished to the Building Authority. Mr Choy continued "I do not understand what you are talking about. If the works are to be considered to be new works, then the safety distances of the tankage layout will not be adequate to comply with current regulations. Even if I furnist you with the information, the plans would not be approved. I cannot see any reason why you have made contradictory statements. In order to see which way you handle the matter, I submit herewith 6 sets of plans which do not comply with current regulations for your action to approve or to disapprove". The Building Authority received these on 23rd May 1988.

34. On 20th June 1988, the Building Authority replied to Mr Choy as follows :-

"Item 1

Your plans submitted on 6th January 1988 were disappoved properly under section 16(l)(1) of the Buildings Ordinance. In this connection, I think this office has given you sufficient explanation of the previous correspondence and I have nothing to add.

Item 2

You must realise that your plans submitted on 6th January 1988 did not show the proposed new tanks which were the subject building works to be approved. It would be very imprudent for this office to take the approach you suggested prior to having due consideration on the substance of the information.

May I put it on record here that you resubmitted on 23rd May 1988 two sets of plans for approval but these plans did not incorporate the required information. You were contacted on several occasions and detailed explanations were given to you regarding the information required. However, you refused to furnish such information. These plans will be processed under the Buildings Ordinance separately."

35. On 21st June 1988 the Building Authority wrote another letter to Mr Choy rejecting his application made on 20th May 1988 and received on 23rd May 1988 for approval of proposals in respect of what the Building Authority described as "Alteration and Addition works (Building)". The Building Authority repeated the list of "contraventions" to which he had referred in his letter of 4th March 1988.

36. On 24th June 1988, Mr Choy wrote to the Building Authority, referring to the Building Authority's letter of 21st June 1988, and asking the Building Authority to clarify why he considered the repair works to be "Alteration and Additions (Building)". He pointed out that his plans showed repair works. There was nothing to be altered or added to the building works already on site. He asked for clarification why the Building Authority stated that his application received on 23rd May 1988 for approval of proposals was in respect of "Alterations and Additions".

37. On 23rd July 1988, the Building Authority replied to Mr Choy's letter of 24th June 1988. The Building Authority said "the proposed works involve the demolition and replacement of the roof and plates of the tanks and are conventionally considered by this office to be known as 'Alteration and Addition (Building) '". He added that such use bore no significance under the Ordinance.

38. On 27th July 1988, Mr Choy wrote to the Building Authority challenging his decision to categorize the proposed works as "alteration and addition works" and informing him of his intention to appeal against the Building Authority's decisions of 4th March 1988 and 23rd July 1988.

39. On 30th August 1988, Mr Choy wrote to the Building Authority setting out his grounds of appeal. He said:-

"My ground of appeal is that the works shown in my plan is repair works and not alteration and addition works. I contest your definition of the works under section 2 of the Building Ordinance for alteration and addition and the status quo of the works after completion remains the same as it is now. Section 3 of Building (Oil Storage Iinstallations) Regulations deals with pollution. The works shown in my plans tackles the corrosion problem and is not an alteration and addition job. As such, there is no alteration and addition to the design of tank age layout, which is a fire requirement under IPMS Code and no alteration and addition to the pollution devices already installed at the site under section 3 of the Building (Oil Storage Installations) Regulations. AS there is no alteration and addition to the above, I do not need to supply information as required for new tanks."

40. On 30th September 1988, the appeal tribunal held a meeting, at which it decided that no good cause had been shown why an inquiry should be held. On 20th October 1988, it informed Mr Choy accordingly. It set out for his information an extract from the minutes of the meeting held by the appeal tribunal on 30th September 1988.

41. These minutes set out, as I have done, the correspondence between Mr Choy and the Building Authority . The minutes continued:-

"It is clear from the correspondence referred to above that it is common ground that the complete tank shells including the bottom and roof plates were to be replaced. As pointed out by the Building Authority, in Appeal Tribunal Case No. 14-87 where the same appellant and the same authorised person were involved, this Tribunal held that 'the replacement of the roof and plates is building works within the meaning of section 14 of the Buildings Ordinance'. We do not consider it necessary or relevant to decide whether the proposed works are in fact repair works or alteration and additional works (building). Whatever label one puts on such works, the fact remains that they are building works within the meaning of section 14(1) of the Buildings Ordinance. That this is so is fortified by what [Mr Choy] said in his letter of 5th January 1988 to the Building Authority. We are satisfied that the Building Authority has acted rightly, and is perfectly entitled, to requires [Mr Choy] to supply the information and particulars requested under section 16(1) (i) and (j) of the Buildings Ordinance without which the Building Authority would not be in a position to approve the plans in question. Indeed we would go further and suggest that the Building Authority would have failed in his duty if he had not done so."

42. The appeal tribunal then recorded:-

"For the foregoing reasons, we are of the opinion that the appellant has failed to show a good cause why an inquiry should be held and accordingly we refused to hold the same."

43. That might have been the end of the matter; but the appeal tribunal chose to add the following comments:-

"In passing, we may add that we have detected from [Mr Choy's] correspondence a sense of grievance and dissatisfaction towards the Building Authority which is both personal and emotive. We note that some of his correspondence were carbon copied to various parties including the OMELCO. It may well be that [Mr Choy] feels that he has been discriminated against and unfairly treated by the Building Authority as a result of the series of frustrating experiences with the Building Authority. He may well be labouring under the impression that the Building Authority has been all out against him. We can, however, say categorically that throughout the present case under consideration, the Building Authority has acted properly and fairly and with tolerance, despite the provocative language used by [Mr Choy]. If [Mr Choy] has any genuine complaint against the Building Authority, he may well be advised to direct his complaints to the appropriate quarter. Instead, he has chosen to engage in protracted and unproductive arguments with fruitless result. The upshot is that a great deal of valuable time has been wasted - to the detriment of all concerned, and in particular, the appellant. As the Building Authority has rightly pointed out in his letter of 25th April 1988:-

'Should you have submitted the required information upon the rejection, the plans should have been approved long ago'.

One cannot but wonder whether such approach is in the best interest of the appellant."

44. In October 1988, Mr Choy wrote a number of letters to the Building Authority but obtained no satisfaction; and in January 1989 he initiated, on his own behalf, these proceedings for a judicial review.

45. On 17th January 1989, Mr Choy filed the statement which he was required to file in support of his application under 0.53, r.3 of the Rules of the Supreme Court. In that statement, he complained of the decision of the Building Authority to disapprove the proposals he had submitted on 6th January 1988 upon the grounds set out in the Building Authority's letter dated 4th March 1988; he complained of the decision of the Building Authority to disapprove his proposals submitted on 23rd May 1988 upon the grounds set out in the Building Authority's letter dated 21st June 1988; and he complained of the decision of the appeal tribunal on 30th September 1988 of which he was given notice on 20th October 1988.

46. Mr Choy gave as his grounds for complaint against the Building Authority the following :-

"(1) The Building Authority was wrong in law in finding that the proposed works were alteration and addition (building) works and/or misdirected itself as to the true nature of the proposed works when considering whether or not an approval should be granted;

(2) The Building Authority was wrong in law in requiring the applicant to show that the tankage layout and safety distances met the recommendations of the [IPMS] Code;

(3) The Building Authority was wrong in law in relying on Regulation 3 of the Building (Oil Storage Installations) Regulations for the purpose of requesting particulars of tankage layout and safety distances under section 16(f)(i) of the Buildings Ordinance in that regulation 3 only related to the risk of environmental pollution and the said particulars requested are not;

(4) The Building Authority was abusing its discretion when disapproving the said proposals in that it had relied on section 16(1)(i) and (j) of the Buildings Ordinance to request information and particulars and the absence of such information and particulars as the ground for disapproval when the requested information and particulars are and were at all material times with in the knowledge of the Building Authority or its staff and where in any event not necessary or relevant for the purposes of considering whether or not an approval should be granted;

(5) In the alternative to sub-paragraph (4) above, the Building Authority by its request made under section 16(1)(i) and (j) of the Buildings Ordinance was ultra vires in that it purported to act in excess of the power and authority bested in it by the Buildings Ordinance and/or purported to usurp the power and authority vested with the Director of Fire Services Department;

(6) The Building Authority took into account irrelevant considerations when disapproving the said proposals;

(7) The Building Authority gave undue regard to the consideration that all information had to be shown on the plans even when such information was not required for the purposes of approval and within its knowledge and came to a perverse and unreasonable decision in disapproving the said proposals;

(8) The Building Authority failed to give any or any sufficient weight or consideration to all the relevant and material factor, in particular:-

(a) The letter from [Mr Choy] dated 8th December 1987 informing the Building Authority that the proposed works were that the existing steel plates would be replaced by steel plates of identical thicknesses and material as the existing ones;

(b) The letter from the Director of Fire Services dated 21st January 1988 stating that the Fire Services Certificate issued on 12th January 1984 was still valid;

(c) The letter from the Director of Fife Services dated 21st March 1988 asserting that the real authority on safety distances was vested with him [this is irrelevant];

(d) The fact that the information and particulars required were actually within the knowledge of itself or its staff.

In the premises the Building Authority acted arbitrarily, capriciously and unreasonably in disapproving the said proposals;

(9) The Building Authority acted inconsistently with the policy set out in its letter dated 215th January 1988 signed by one Mr P.H. Hayward of the Building Authority [this is irrelevant]

(10) The grounds set out by the Building Authority purporting to be the basis for the disapproval of the said proposals did not provide sufficient reasons to support its decisions;

(11) The decision of the Building Authority disapproving the said proposals was ultra vires;

(12) The acts of the Building Authority were in breach of natural justice and unfair."

47. Mr Choy gave as his grounds for complaint against the appeal tribunal the following:-

"(1) The Appeal Tribunal was wrong in law in holding that it is not necessary to decide whether the proposed works were repair works or alteration and additional works (building);

(2) The Appeal Tribunal was wrong in law in holding that the information and particulars requested by the Building Authority purportedly under section 16(l)(i) and (j) of the Buildings Ordinance was necessary for approving the proposals submitted;

(3) The Appeal Tribunal failed to consider all relevant and material facts and matters before deciding not to hold an inquiry. In particular, the Appeal Tribunal failed to take into consideration the following :-

(a) That by Regulations 124 and 125 of the Dangerous Goods (General) Regulations, it is the Director of the Fire Services Department who is entrusted with the duty and authority to approve and/or commend on safety distances to tankage layout, the information and particulars requested by the Building Authority;

(b) That the said information and particulars requested are existing details which had been submitted to the Building Authority in 1972 when the said oil storage installations were constructed and the Building Authority or its staff is and was fully aware of the same at all material times;

(c) That the Director of Fire Services had issued a letter dated 21st January 1988 stating that the Fire Services Certificate issued on 12th January 1984 is still valid and as such indicating his approval to the proposed repair works, including the safety distances and tankage layout.

In the premises the Appeal Tribunal acted arbitrarily, capriciously and unreasonably when reaching the decision of refusing to hold an inquiry;

(4) That the Appeal Tribunal acted in breach of natural justice and unfairly when it made the comments on the manner in which [Mr Choy] handled the situation;

(5) That the Appeal Tribunal's comment on [Mr choy] were totally unfounded in all respect;

(6) That the Appeal Tribunal did not provide an opportunity for [Mr Choy] to be heard in relation to the said comments either prior to them being made or thereafter;

(7) That the Appeal Tribunal and the Building Authority refused to review the said decision by refusing to hold an inquiry;

(8) In the premises the Appeal Tribunal was in breach of the rules of natural justice, unfair and wrong in law in refusing to hold an inquiry into the said disapproval."

48. On 20th January 1989, Mr Choy was given leave to move the Court for relief on the grounds I have mentioned; and, on 17th March 1989, his application came on for hearing before me. I indicated at an early stage that I was of the opinion that the proceedings, to which UCA were not at that stage a party, were improperly constituted; but I indicated that, if asked to do so, I would give leave for UCA to be added as an applicant. That application was duly made; and UCA has been added as an applicant accordingly. On 5th June 1989, the matter came on for hearing before me again; the hearing extended over two days and at the conclusion of the hearing on 6th June 1989 I reserved my judgment.

49. Having considered the whole matter, I conclude that Mr Choy has no standing which justifies his institution of these proceedings. If the Building Authority, or the appeal tribunal, have got it wrong, the person prejudicially affected by their errors is UCA, not Mr Choy. I do not forget that Mr Choy, as the authorised person appointed by UCA for the works in question, has duties and responsibilities cast upon him in that connection by the building legislation. But, in my judgment, that is not enough to give him the necessary standing to institute proceedings for a judicial review of the decisions of the Building Authority and the appeal tribunal which went against his client. In this connection, as it seems to me, an authorised person is no different from any other professional agent. If an authorised person disagrees with the view taken by the Building Authority on any subject whether particular or general, he cannot ordinarily come to the Court for a determination of the question which of the two of them is right. I do not exclude the possibility that, in an exceptional case, where the Building Authority has embarked on a course of unlawful conduct which ought to be stopped, then, if the matter were of general public importance, a citizen would be entitled to call the unlawful conduct into review before the Court. But this would be the right of any citizen or body of citizens (say, for example, the Hong Kong Society of Architects). It would not be the right of an authorised person in his capacity as such.

50. This As not that sort of case. The proper person, and the only person entitled here to complain (if anybody is entitled to complain at all) of the decisions of the Building Authority or of the appeal tribunal is UCA. So far as Mr Choy is concerned, I hold that I would have no jurisdiction to entertain his complaints in the absence of UCA.

51. I will only add this. The comments made by the appeal tribunal about Mr Choy's conduct of the matter were gratuitous. They were unnecessary for the decision and were made, as the appeal tribunal itself said, "in passing". I think this was unfortunate. A court or tribunal may have to consider the conduct of a party, or a witness, in order to evaluate the worth of his evidence; and it is entitled to explain its reasons for its conclusions, even when they involve making adverse comments upon the man. But, where such comments are unnecessary, it is better for the court or tribunal to forebear from making them. None of this, of course, affects my own conclusion that Mr Choy has demonstrated nothing in this case which gives him the standing to ask for a judicial review of the decisions of the Building Authority of the appeal tribunal.

52. The position of UCA is quite different. There is no doubt about UCA's standing to apply for a judicial review of the decisions of the Building Authority and the appear tribunal. If the proposal's submitted by UCA, through its authorised person, to the Building Authority are dealt with by the Building Authority, or the appeal tribunal, illegally, irrationally or improperly, then UCA is entitled to seek such a review. But this is not an appeal. I am not concerned with the merits or demerits of any conclusion arrived at by the Building Authority or the appeal tribunal. I am concerned only to see that UCA has been lawfully, reasonably and properly treated.

53. The appeal tribunal did not consider it necessary or relevant to decide whether the works proposed here were in fact repair works or alteration and addition works (building). They pointed out, rightly, that whatever label one puts on such works, the fact remains that they, are building works within the meaning of section 14 (1) of the Buildings Ordinance. UCA does not dispute this. But I consider that I must express a view upon this point, which lies at the heart of the dispute which has arisen between Mr Choy and the Building Authority.

54. The repair of defects in an existing structure, however extensive the work, is not the construction of a new structure, even if it involves the replacement or renewal of part of the existing structure. Nor does such work involve works of alteration or addition. Of course, you may replace an existing structure with a wholly new one; and you may alter and add to such an existing structure. But repair work does not necessarily involve either of these things. An existing structure, however extensively repaired, is not, in the ordinary use of language, a new building. Nevertheless, it may, for special purposes, fall to be treated as such; for example, for the purposes of section 17 of the Ordinance. The Building Authority may, under that section (as I have pointed out) impose conditions for his approval of plans of building works (including repair works) in connection with an existing building which would result in a "new building" as that term is defined in section 2 (1) of the Ordinance.

55. UCA is faced with a real problem. If the Building Authority insists on compliance with the provisions of the Code of Practice and the IBMS Code in relation to tankage layout and safety distances as a condition of approving the proposed repair works, he will render the proposals nugatory; for there is no doubt that the present installations, constructed in 1972, do not now comply with the requirements which have been in force since 1978, and will not do so after the proposed repair works have been completed. In the result, UCA would either have to soldier on with the installations as they are, in a state of disrepair, or abandon them altogether.

56. In my judgment, the Building Authority is entitled to insist on a submission (including the appropriate plans) which will enable him to decide whether, in the exercise of his discretion, he should dispense in this particular case with compliance on the part of UCA with the Code of Practice and the IPMS Code. An exercise of that discretion which failed to have regard to the fact that the existing tankage layout and safety distances are regarded as satisfactory by the Director of Fire Services, and failed to have regard to the fact that the works proposed are works of repair to an existing building, and not works of alteration and addition to an existing building, would, in my judgment, be a flawed exercise of discretion (for it would be unreasonable in the Wednesbury sense). But if, having taken these matters into account, the Building Authority nevertheless came to the conclusion that he ought not to authorise works (albeit only repair works) which would result in an oil storage installation which did not meet modern requirements as to tankage layout and safety distances, then an exercise of his discretion adverse to UCA would be proper.

57. The trouble with the present case is that, despite all the time and money and effort which has been spent on it, it has not got that far. UCA's proposals have juddered ed to a halt because, throughout, both the Building Authority, and Mr Choy, have acted unreasonably. The Building Authority has acted unreasonably in demanding of Mr Choy that he "demonstrate that the design and construction of the proposed new tanks meet the standards laid down in the Code of Practice, in particular that the tankage layout and safety distances of the proposed new tanks meet the recommendations of the IPMS Code". That is unreasonable; because it is predicated on the basis that what is proposed is the construction of new tanks, whereas, in fact, what is proposed is the replacement of existing tanks. Mr Choy has acted unreasonably, in that he has refused ("as a matter of my principle", as he put it in a letter of 28th October 1988 to the Building Authority) to put down on his plans the details as to distances which the Building Authority asked him to supply and which it was entitled to ask him to supply under section 16(1)(i) and (j) of the Ordinance.

58. There is a simple solution to the present impasse. Mr Choy must give way on the matter of stating the distances on the plans submitted to the Building Authority. The Building Authority must give way on his insistence that the proposed repair works are works of alteration and addition, and must treat Mr Choy's submission, when in proper form, upon its merits; it will remain a matter for the exercise of the Building Authority's discretion, but it must be a discretion exercised upon the footing that the proposed works are repair or replacement works, not on the (incorrect) footing that the proposed works are works of alteration and addition.

59. I have my own discretion in the matter, that is to say, whether to grant or refuse any relief to UCA upon this application (I have already explained that I do not propose to entertain the application by Mr Choy). I have come to the conclusion that I ought not, at this stage of the matter, to grant UCA any relief. I am content to leave it to the good sense of UCA and of the Building Authority to take note of the views expressed in this judgment. So far as the appeal tribunal is concerned, nothing that it has done warrants the grant against it of any of the relief which UCA has claimed.

60. I will no doubt be asked to provide for the costs of this application. I am disposed to make no order as to costs; but I will of course hear counsel if they wish to try and persuade me to a different view.

Representation:

Miss Teresa Cheng inst'd by Baker & McKenzie for the Applicants.

Mr D.P. Logan, Sr. Crown Counsel, for the Respondents.