Fortune Friend Ltd and Others v. Appeal Tribunal (Buildings)

HCAL 2320/2023

[2024] HKCFI 1569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2320 OF 2023

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D E C I S I O N

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A.  Introduction

1.The Applicants are owners of five different units on the 21^st floor of a building known as Tai Hang Terrace.  On 29 December 2020, the Building Authority (“BA”) issued the various subject building orders (“SBOs”), requiring the Applicants (1) to demolish certain structures (“Structures”) on the roofs of each of their units, on the basis that the Structures were unauthorised building works (“UBWs”) erected inconsistently with the BA’s approved plans, and (2) to reinstate the roofs according to the approved plans.

2.The SBOs were issued pursuant to section 24(1) of the Buildings Ordinance Cap 123 (“Ordinance”).  The Applicants exercised their right of appeal against the SBOs, to the Appeal Tribunal (Buildings) (“BAT”).  The BAT decided to hold a preliminary hearing pursuant to section 49 of the Ordinance, and the parties’ evidence (including expert opinion evidence) and submissions were filed for that purpose.  The preliminary hearing was held on 12 October 2022.

3.By its determination dated 26 September 2023 (“Determination”), the BAT dismissed the Applicants’ appeals on the grounds of appeal advanced by them.

4.By Form 86 dated 22 December 2023, the Applicants have sought to challenge the Determination by way of judicial review.  I gave directions to bring the matter to a rolled-up hearing of the application for leave to apply for judicial review and, if appropriate, the substantive application for judicial review.

5.The rolled-up hearing was fixed for 13 June 2024. At the hearing, the Applicants were represented by Mr Kevin Lau of Counsel, and the BA was represented by Ms Queenie WS Ng of Counsel.  Both Counsel argued the case with skill.  The BAT took a neutral stance in the proceedings, and was excused from attendance.

6.At the end of the hearing, I reserved my decision to be handed down later.  This is my Decision.

B.  The Structures and the SBOs

7.As recorded in the Determination, the Structures of Flats 2101, 2102 and 2106 are all pitched roofs with metal truss beams as supporting members and covered with corrugated mild steel sheets (“CMS”) while those of Flats 2107 and 2112 are single slope roof trusses covered with CMS.

8.It was common ground between the Applicants and the BA, both before the BAT and this Court, that:

(1)  the Structures are not recorded in the original building plans of 1975 or the latest approved plans;

(2)  the Structures are “building works” within the meaning of section 2 of the Ordinance;

(3)  the BA’s approval and consent under section 14(1) of the Ordinance are required;

(4)  there is no evidence adduced of the BA’s approval and consent under section 14(1);

(5)  the Structures can be properly be described as UBWs, and were indeed described as such by the respective experts of the parties before the BAT.

9.Each of the SBOs was issued in an English language version and a Chinese language version.  In the English language version, each SBO contained the following identical paragraphs (emphasis added):

[1.] It has been brought to my attention that the following building works have been carried out in or at the above premises:

(i)  A structure on and over the roof of the premises.  (The location of the building works described above is shown attached-black on the plan and annexed hereto, for the purpose of identification only.)

2.  For the said building works:

(a)  The building work at item (i) above have been carried out without having first obtained from me the approval of building plans and consent for the commencement of such building works required by section 14 of the Buildings Ordinance.

3.  In exercise of the powers vested in me under section 24(1) of the Buildings Ordinance, I hereby order you to:-

(a)  demolish the said building work described under item (i) above;

(b)  reinstate the parts of the building so affected by the building works under item (i) above in accordance with the Plans approved by the Building Authority.

Adequate precautionary measures to ensure public safety and prevent damage to the integrity of the parent structure including the damp proofing construction, if any, should be provided prior to and during the course of works.

4.  You are required to commence the works ordered by me in paragraph 3 above within 90 days and complete such works within 180 days of the date of this order, all to the satisfaction of the Building Authority.

10.The Chinese language version of paragraph 3 does not include the words I have underlined above.  Therefore, the Chinese language version reads only as follows (if in English translation):

Adequate precautionary measures to ensure public safety should be provided prior to and during the course of works.

11.This difference has been referred to as the “Language Discrepancy”.

C.  Section 49 Preliminary Hearing

12.Section 49 of the Ordinance provides:

(1)  The Appeal Tribunal may, in any case where it considers it appropriate to do so, hold a preliminary hearing to determine whether good cause has been shown for holding a full hearing.

(2)  If the Appeal Tribunal determines that good cause has not been shown for holding a full hearing it shall make an order dismissing the appeal but shall otherwise hold a full hearing.

13.As already indicated, the Applicants exercised their right of appeal against the SBOs, to the BAT.  As I understand it, the BAT decided at an early juncture – and before the Applicants were legally represented – that it would hold a preliminary hearing pursuant to section 49 of the Ordinance, and the various materials then filed were directed at what would be canvassed at and lead to a determination after the preliminary hearing.

14.Before turning to the resulting Determination, it is helpful first to identify the legal framework for and proper approach to such a preliminary hearing.  They can be found, for example, in my recent decision in Benver Co Ltd v. Appeal Tribunal (Buildings) [2023] 2 HKLRD 1201 at §§45-48, and in Magic Key Ltd v. Appeal Tribunal (Buildings) [2020] HKCFI 1716 at §§27-29 (per Chow J, as Chow JA then was), and might be restated as follows:

(1)  Section 49 of the Ordinance gives the power to the BAT to dismiss an appeal at a preliminary hearing when no good cause has been shown for holding a full hearing.

(2)  The section 49 proceeding is to determine if the appeal should be weeded out at an early stage.

(3)  It is not a process to see if the BA can produce sufficient evidence to justify the issuance of the relevant building orders in the first place.

(4)  The burden rests squarely on the appellant to show to the BAT that there is a good cause for holding a full hearing.

(5)  An appellant does not discharge the evidential burden by making unsubstantiated assertions.

(6)  Therefore, it is a matter for the appellant to place such evidential materials before the BAT as he thinks is sufficient to satisfy the burden of showing good cause for holding a full hearing.

(7)  Hence, if an appellant simply chooses to rely on bold assertions unsupported by concrete evidence, he should not be surprised to find that the BAT rejects his appeal on the ground that no good cause has been shown for holding a full hearing.

(8)  Whether an appeal has merit must be determined by reference to the materials placed before the BAT by the parties.

(9)  Generally speaking, if an appellant raises a substantial dispute of fact, the resolution of which is required for the purpose of disposing of his appeal, it is likely good cause has been shown for holding a full hearing.

(10)  However, if the disputed fact is not material to the outcome of the appeal, the BAT is under no duty to resolve that dispute, and may dismiss the appeal forthwith.

(11)  The preliminary hearing is not a striking out and the BAT is not bound to take the factual assertions of the Applicant its highest, or at face value.

(12)  Rather, the BAT is entitled to approach the threshold question with a degree of robust common sense.

(13)  The BAT’s members are chosen on account of their relevant specialist knowledge and skills, and are entitled to consider evidence broadly, pragmatically and with common sense.

(14)  It would not normally be appropriate for the BAT to resolve conflicts of expert evidence at a preliminary hearing, unless the materials before the BAT justify a conclusion being reached on the issue at a preliminary hearing.

(15)  The BAT may refuse to hold a full hearing where it is apparent that an ostensible dispute of fact is without substance, or where the appeal is wholly lacking in merit or is frivolous.

15.It is also helpful to note that the appeals to the BAT in this case concerned the SBOs issued pursuant to section 24(1) of the Ordinance.  It is well-settled that the wording of that section gives the BA a discretion as to whether or not to issue a building order.  But the discretion is limited or circumscribed, in the sense that it cannot be exercised to defeat the purpose of the Ordinance.

D.  The Determination

16.First, I note from the transcript of the preliminary hearing that the parties’ opening submissions lasted approximately one and a half hours, the oral examination and cross-examination of the respective experts also lasted approximately one and a half hours, and the closing submissions lasted a little over half an hour, before the BAT reserved its decision.

17.In the Determination, the BAT summarised the Applicants’ grounds of appeal as follows:

(1)  Each of the SBOs is a nullity and/or invalid and/or made ultra vires the BA’s powers under section 24(1) of the Ordinance.

(2)  The BA failed to take into account all relevant considerations and/or took into account irrelevant considerations before issuing the SBOs.

(3)  The BA defeated the Applicants’ legitimate expectations that it would not take enforcement action against them for the Structures.

18.As regards the first ground, the BAT held that the SBOs (1) were not “hopelessly ambiguous and uncertain” as might have made them a nullity, (2) were not null and/or invalid for want of a list of guidance or advice, and – most material for the present judicial review application – (3) rejected the Applicants’ arguments based on the expert evidence.  In gist, the BAT:

(1)  recorded the Applicants’ submissions that because of the structural impact of removing the Structures, paragraph 3 of the SBOs, requiring protection of the integrity of the building, is subject to unworkable uncertainty;

(2)  noted the argument that the BA failed to take the structural impact of removing the Structures into account as a relevant consideration;

(3)  noted the emphasis placed by Mr Yeung on the difficulties and risks of demolishing the parapet walls;

(4)  accepted Ms Ng’s submission that there is insufficient evidence from the Applicants on the difficulties and risks of demolishing the CMS structures (a different part of the overall Structures comprising the UBWs);

(5)  noted Mr Yeung’s important evidence that demolition of the parapet walls will damage the waterproofing membrane at the rooftop, and that vibration omitted during the process will cause damage to property, with consequences which might be serious and potentially fatal;

(6)  noted that Mr Yeung conceded that the demolition of the Structures was technically feasible, whilst doubting that manual tools would be effective, and that that would nevertheless still require the provision of temporary support to the floors below;

(7)  noted Mr Wong’s challenge to Mr Yeung’s report, and his citing regarding various test results as well as a lack of structural assessment of the Structures to support Mr Yeung’s conclusions;

(8)  noted that Mr Wong said that the Applicants’ cases should be managed by a Minor Works Contractor, with the parapet walls being cut and remove manually – and that the level of temporary support suggested by Mr Yeung would be unnecessary;

(9)  recorded that it was faced with prima facie conflicting expert evidence;

(10)  set out §§27-29 and 35 of the Magic Key case,and §25 of Longest Profit (Hong Kong) Ltd v Appeal Tribunal (Buildings) (unreported, CACV 60/2013, 29 January 2014);

(11)  made the observation that when Mr Yeung doubted the effectiveness of using manual tools on the parapet walls, he did not have any basis for his belief – quoting from one of his answers in cross-examination;

(12)  noted that Minor Works Control System (“MWCS”) is mentioned in the cover letters to the SBOs and by the BA in the appeals, but the Applicants had never specifically stated that their cases do not fall under the MWCS;

(13)  held that if the Applicants opted for more sophisticated demolition or reinstatement methods and take higher levels of precautionary measures, they should not be permitted to use any resulting potential problems, risk, or burden on them as grounds to challenge the validity of the SBOs.

19.As to the second ground, the BAT did not accept the Structures were built by the original developer, and even if they were, it was legally irrelevant – citing K Yeung J’s decision in Building Authority v Appeal Tribunal (Building) [2022] HKCFI 3054 – because the undisputed fact remained that, under the current enforcement policy, the Structures fall within the scope of actionable UBWs, regardless of their risk to public safety or whether they are newly constructed.  The BAT held that the Applicants’ argument amounted to saying that the BA should ignore the unlawful nature of the Structures and let them stand so long as they are (at present) structurally safe and their demolition process may pose serious risk to others.  The BAT held that is a “flawed logic” which, if accepted, could create a dangerous precedent and encourage others to follow suit or emulate.

20.As to the third ground, the BAT held that the Applicants could not convince it that their cases could be distinguished from previous decided cases – and the allegation that the Applicants had expectations, let alone legitimate, was far from convincing.  This point is not pursued in any way in these judicial review proceedings.

21.As to the “new point” of the Language Discrepancy, the BAT held that it was not a pure legal issue, had not been previously mentioned, and the BA was not given a fair opportunity to conduct research and make full representations.  Therefore, the BA refused to address or decide the Language Discrepancy point.

22.In conclusion, the BAT held that no good cause had been shown for holding a full hearing, and dismissed the appeals.

E.  The Intended Grounds of Review

23.The Applicants have sought to advance four grounds of review, in challenge to the Determination:

(1)  Ground 1:  The BAT took an erroneous approach to the point based on the Language Discrepancy.

(2)  Ground 2:  The BAT misdirected itself as to the expert evidence.  This ground concerns the alleged unsatisfactory manner in which the BAT dealt with the expert evidence concerning the removal of the rooftop concrete parapet walls which are a part (but not the whole) of the Structures.

(3)  Ground 3:  The BAT failed adequately to address the submission that the audit works require BA approval for which no guidance is provided in the SBOs.

(4)  Ground 4:  The BAT erred in finding that the Structures were not erected by the original developer, and when rejecting that point as being relevant to consideration of the BA’s discretion.

24.In his written and oral submissions, Mr Lau took those Grounds out of order, focusing first on Ground 2 (then Grounds 1, 3 and 4).  I shall also address Ground 2 first.  Further, it seems to me that to some extent Grounds 1, 2 and 4 are interconnected and/or may impact one on another.  I shall, therefore, address Ground 3 last.

F.  Ground 2:  Approach to Expert Evidence

25.Both sides called expert evidence, which (as I have noted above) the BAT acknowledged in the Determination was prima facie in conflict.

26.In his written and oral submissions, Mr Lau took some care in identifying how the expert evidence (and relevant submissions) had developed, through the original written reports, subsequent particulars and representations, oral evidence including cross-examination, and closing submissions.  I will rehearse some of the materials, but I keep in mind that this is a judicial review, not an appellate or merits review.

27.The Applicant’s instructed expert (“Mr Yeung”) stated in his written report, amongst other things, that:

(1)  he had carried out two site inspections;

(2)  he had carried out a rebound hammer test on the reinforced concrete parapet walls which were part of the Structures, identifying that the hardness of the concrete walls was similar to the strength of a structural column on the first floor of the building;

(3)  demolition required the use of the saw-cut method;

(4)  the parapet walls and external walls of the building are built as one “monolithic structure”, so that demolition by the saw-cut method would affect the “structural integrity” of the building;

(5)  even handheld machinery would cause hairline or even structural cracks to ceilings, walls or columns in the units below those belonging to the Applicants;

(6)  demolition works would affect the waterproof membrane of the roof, may possibly cause the ceramic tiles fixed to the exterior facade of the building to fall off, and would require precautionary measures to minimise the impact of debris and necessitate temporary support at the structural components of the three floors below the roof;

(7)  the way it was put in paragraph 5.6 of the Conclusions section of the report (further explained and described in the following sub-paragraphs) included:

A comparison of the two readings indicates that the concrete parapet walls on rooftops are as strong as the concrete of column on 1^st floor, which is a major structural component of the building.  In my opinion, demolition of these structural parapet walls of All 5 Units will inevitably affect the building structure as a whole, especially the roof structure.  These demolition works, if carried on-site, will also affect the waterproof membrane of the roof and will eventually cause water leakage to all units below the flat roof in the building.

(8)  the sub-paragraphs to paragraph 5.6 identified “some of the real and major difficulties and problems” should demolition works be carried out at the rooftop, including logistical issues and potential structural problems.

28.The BA’s instructed expert (“Mr Wong”), in his written report, stated:

(1)  he had not carried out any site inspection and had not carried out any tests (his methodology was to comment on the report of Mr Yeung, with reference to the approval plans and inspection photos);

(2)  Mr Yeung had not included any structural engineering assessment of the Structures or the parent building;

(3)  the methodology of the rebound hammer test was incorrect, and the magnitude of claimed concrete strength is “dubious”;

(4)  more scientific tests shall be adopted if proving the age of the concrete elements is necessary;

(5)  he “noted” the concern of demolition work related to the concrete parapet;

(6)  but, he thought the demolition work was not unfeasible, subject to construction resources.

29.In their further particulars filed afterwards, the Applicants emphasised (by reference to Mr Yeung’s report) that whilst the Structures currently pose no structural danger, their removal would generate complexity and safety risks, including potential damage to the integrity of the parent structure.

30.Both experts gave oral evidence at the preliminary hearing, and were subject to cross-examination.  As regards Mr Yeung’s evidence, Mr Lau has sought to emphasise:

(1)  he explained that the rebound hammer test was non-destructive (in circumstances where he had not been able to conduct a ‘core’ or other destructive test), but though preliminary it provided reference data;

(2)  he was of the opinion that the parapet walls were built by the original developer;

(3)  he was not challenged on the point that the Structures’ hardness meant that removing them would cause structural impact of the parent building (though he was challenged as to whether concrete hardness can show that the parapet walls of the Structures were built at the same time as the parent building);

(4)  he accepted that the difficulties in removal or demolition were “not entirely unsolvable”;

(5)  but, he emphasised that the difficulties and problems with removing the Structures were not simply a matter of cost, where safety is the paramount consideration;

(6)  he stated that protective measures such as temporary support systems would still be needed even if other owners were cooperative;

(7)  he said that, ideally, downstairs owners would be relocated for the duration of the project;

(8)  he was not asked about the applicability of the Minor Works Control System to the removal of the Structures.

31.As regards Mr Wong’s evidence, Mr Lau has sought to emphasise that:

(1)  his view was that the concrete hardness test was irrelevant, because in so far as the Structures were UBWs they had to be removed (which was a stance differing from that taken in his report);

(2)  he stated that whilst the test might prove not much difference in strength, it was not useful as a test to prove that the parapet wall was built by the original developer;

(3)  he explained his opinion as to how to demolish the Structures;

(4)  in that regard, he mentioned that the case should be handled by a minor works contractor, taking into account the actual situation on site and making appropriate precaution measures;

(5)  he stated that the demolition is feasible, but has to be done slowly, manually demolishing with hand tools and removal bit by bit, without the need for temporary support as suggested by Mr Yeung.

32.I have set out above the approach taken by the BAT in its Determination.  Mr Lau submitted that, after properly recognising the prima facie conflicting expert evidence, the BAT then fell into error in its subsequent steps:

(1)  First, though the BAT held that Mr Yeung had no basis for doubting the effectiveness of manual tools on the Structures, in the same paragraph it quoted precisely the basis identified by Mr Yeung, namely the hardness of the concrete.  The BAT expressed its doubt (a) without rejecting the hammer test as being unreliable or improper, and in circumstances where Mr Yeung had not been cross-examined as to why manual tools would not be effective on hard concrete, and (b) in the absence of any tests or test results offered by Mr Wong.

(2)  Secondly, reliance on the MWCS was inapplicable or inappropriate because there is at least a good argument that the MWCS does not apply (because the regime applies only where removal works do not involve the alteration of any other structural elements), and the finding was reached procedurally unfairly when no detailed evidence was given by the experts, nor was Mr Yeung asked at all, about the MWCS.

(3)  Thirdly, the BAT’s logic does not address or answer the Applicants’ point that the SBOs requirement to preserve the integrity of the parent building structure is uncertain, because removing the Structures would affect the building’s structural integrity.

(4)  Fourthly, the rejection of the Applicants’ point (that the BA failed to take into account that the Structures are currently safe but removing them might generate structural danger) as “flawed logic” which could create a dangerous precedent is unsupportable where (a) the BAT did not disagree with the underlying premise, and (b) if established that factual premise must be a relevant factor to take into account in the exercise by the BA of its discretion.

(5)  Hence, the BAT ought to have found the points at least good cause for a full hearing.

33.Ms Ng defended the approach taken by the BAT by submitting as follows:

(1)  By reference to the evidence of Mr Yeung as a whole – in particular that the hammer test carried out by him was a preliminary check on the strength of concrete, which could not be relied on completely, and was only used for reference data – it was reasonable for the BAT to come to the conclusion that there was no basis for Mr Yeung to doubt the effectiveness of using manual tools to demolish the parapet walls.

(2)  As to the point on MWCS, the BA’s further representations dated 22 July 2022 had specifically submitted that removal of unauthorised structures are minor works under the Ordinance, which may be carried out lawfully following the simplified requirements of the MWCS, and the MWCS was also mentioned in the cover letters.  It was the Applicants’ own choice not to deal with these matters in Mr Yeung’s evidence or closing submissions at the preliminary hearing.  Further, when Mr Wong mentioned the MWCS, there was no further cross-examination of him in that regard.  So it is unfair to criticise the BAT for making reference to the MWCS to reject Mr Yeung’s evidence.

(3)  As a result, the Applicants’ third point should also be rejected.

(4)  The Applicant’s fourth point is premised on the assumption that the demolition of the Structures would generate structural changes, but (leaving aside the fact that Mr Yeung is not a structural engineer and did not carry out any scientific examination/assessment), it was not his evidence that no demolition work could be done since the Structures would generate structural dangers.  Rather, he accepted that if the demolition works are carried out, the difficulties he identified in his report are not unsolvable.  Hence, the BAT rightly concluded that the Applicants should not be permitted to use any potential, risks or burden arising from the more sophisticated demolition or reinstatement method.

34.There is some force in Ms Ng’s points, but ultimately I am persuaded that the BAT did fall into error, for the following reasons:

(1)  The BAT effectively overlooked the mismatch on the expert evidence.  Mr Yeung explained his basis for doubting the effectiveness of manual tools on the Structures, by reference to the test he had performed as to the hardness of the concrete.  Whilst it might be correct that the test was not “scientific”, it was in effect the best non-destructive test available, and plainly provided some suitable reference point.  The BAT did not exactly reject the test as being unreliable or improper, and there was no contrary test evidence offered by Mr Wong (who in effect took the stance that the test results were irrelevant, though focusing on the question as to whether the original developer had built the parapet walls).

(2)  Further, though Mr Yeung did accept in cross-examination that the various difficulties identified by him were not unsolvable, I do not think that necessarily meant (at least not sufficiently clearly so) that he moved away from his written position that removal of the Structures would “inevitably” risk structural damage to the parent building.

(3)  As to the MWCS, whilst it is correct that the Applicants might have more obviously addressed this point, it did not appear central to the issues (as is evident from the fact that no aspect of or relating to the MWCS was put to Mr Yeung in cross-examination).  Other than the brief mention by Mr Wong in one answer of his evidence, there was no real focus on MWCS at the hearing, it was not addressed in oral closing, and there was certainly no indication that the BAT might find this a point of importance or determinative.  Further, as Mr Lau submitted, the MWCS is in essence a procedural shortcut which may avoid more time-consuming pre-works approval processes, but that does not directly address the key question raised as to actual on-site safety or risk to structural integrity of the parent building.

(4)  I also think that Mr Lau’s criticism of the BAT’s “flawed logic” point was sound.  First, the BAT did not clearly disagree with the underlying premise that the Structures are currently safe but removing them might generate structural danger.  I also agree that if that factual premise were to be established, that is likely a relevant factor to take into account in the decision on the appeal arising from exercise by the BA of its discretion.  Lastly, any stated concern that a dangerous precedent could be set seems to me to point to a need to be precise as to the circumstances when a precedent might arise, which is not a dangerous one.  That likely requires a full hearing.

35.Therefore, I conclude that Ground 2 is not only reasonably arguable with a realistic prospect of success, justifying the grant of leave to apply for judicial review, I would find in favour of the Applicants on the substantive point.

G.  Ground 1:  The Language Discrepancy

36.The Language Discrepancy point seems to me to be straightforward.

37.It is, of course, correct that the point was raised as a “new point” at the preliminary hearing – and Counsel then appearing for the Applicants fairly made that absolutely clear.  But, of course to her credit, Ms Ng grappled directly with the argument, and offered her response and argument against it.  From the transcript of the closing submissions, the sense is that the point was fully argued, and it was not suggested that this was a point which the BAT could not or need not address.

38.In those circumstances, I think there was a procedural error and unfairness in the BAT’s refusal to deal with the point.

39.In any event, the Language Discrepancy point is linked to, and may impact upon, the points arising on the expert evidence, and the stated concern as to risks to the structural integrity of the parent building structure caused by demolition of the Structures, or the parapet walls which form part of those Structures.

40.On the face of the SBOs the English language version requires the Applicants to ensure public safety and prevent damage to the integrity of the parent structure including the damp proofing construction.  The Applicants have identified a case, which I consider to have been sufficiently raised on the evidence but insufficiently fairly addressed by the BAT, that there may be at least difficulty, if not impossibility, with complying with that requirement.  Where the Chinese language version of the SBOs differs, there is at least a potential mismatch as to what is actually required by the SBOs.

41.I take note of Ms Ng’s argument that the discrepant words are essentially only a reminder (she says “warm reminder”) of the need for the Applicants to comply with the legal requirements in the demolition and reinstatement works.  Whether that is or is not correct seems to me to be a matter particularly worthy of full consideration at a full hearing.

42.Put another way, the Language Discrepancy seems to me to give rise to a real and necessary argument as to whether there is some ambiguity, uncertainty or inaccuracy in the SBOs, which is good cause for a full hearing.

43.I would grant leave to apply for judicial review on Ground 1, as well as find in favour of the Applicants on the substantive point.

H.  Ground 4:  Whether Structures Built by Original Developers

44.The above heading truncates the criticism of the BAT which underpins Ground 4.  That criticism is that the BAT fell into procedural irregularity in its finding that the Structures were not erected by the original developer, and in rejecting that point as being in any way relevant to the discretion in deciding whether or not to issue the SBOs.  Mr Lau submitted that the BAT’s rejection of the Applicants’ argument on both the facts and the law fell into error.

45.As to the law, Mr Lau points to the fact that the BAT relied on the decision of K Yeung J (see above) when that decision had not been cited by any party at the preliminary hearing, and had not been raised by the BAT at the hearing or any time thereafter.  I note that the decision is dated 6 October 2022, less than a week before the preliminary hearing before the BAT on 12 October 2022, and that might explain why no person had picked it up for reference at the preliminary hearing.  Presumably the decision came to the attention of the members of the BAT at some point in the 14-month period taken to produce the Determination. Mr Lau submitted that that was a procedural unfairness, not least in circumstances where he has been able to offer submissions as to the reliability of it (where the interested parties acted in person or did not appear) or the weight which might be given to that decision by the BAT.

46.As to the factual dimension, Mr Lau submitted that the BAT’s reasoning is problematic, because it was based only on its decision on aerial photo analysis, but otherwise wholly ignored the Applicants’ other arguments relevant to the same issue, which were based on the on-site inspection of the actual Structures (similar parapet walls, similar welding and construction methods, the difficulties for any individual owners to have constructed parapet walls by themselves without centralised coordination, and the point about “monolithic” structure).  Ignoring those points was also surprising when they had been addressed in some detail by the BA, whose expert dealt with the points in his report, and where the Applicants’ expert was cross-examined on them.

47.Ms Ng submitted, as to the factual dimension, that the Applicants are simply repeating the arguments which they ran before the BAT, where the allegation that the Structures were built by the original developer was plainly not supported by evidence.  I acknowledge that the BAT did not have to address all of the evidence in reaching its conclusions, but it does seem to me that would have been at least preferable to have addressed some of the other points which were not all covered by the aerial photos.  But, more importantly, I think the description of what the Applicants’ argument amounted to – i.e. that the BA should ignore the unlawful nature of the Structures and let them stand as long as they are at present structurally safe – was not a fair description.  Rather, the Applicants were arguing that the possibility that the Structures were presently safe but their removal might create safety problems was something which ought to be brought into account.

48.That point seems to me to be connected to, and may impact upon, the points raised by Grounds 1 and 2.

49.As to the law, Ms Ng submitted that K Yeung J’s decision was handed down before the preliminary hearing, and in any event is a decision binding on the BAT – so that it was plainly entitled to have considered it.  But I do not think that answers the main point of the criticism, namely that there was a procedural unfairness or irregularity when the parties were not at least invited to address the BAT on an authority which it found determinative, but which had not previously been addressed by the parties (probably for the understandable reason that the decision pre-dated the preliminary hearing by only a few days).  Certainly, there was plenty of time within which the BAT might have invited those submissions, even if it had identified when doing so that it had formed the preliminary view that the decision was sound and binding upon it.

50.I would grant leave to apply for judicial review on Ground 4, and find in favour of the Applicants on the substantive point.

I.  Ground 3:  Absence of Guidance

51.Ground 3 was not pursued with any enthusiasm at the hearing, and Mr Lau was content to rest on his written submissions, which in turn simply adopted the brief analysis set out in the Form 86.

52.That analysis ran as follows:

(1)  One point taken by the Applicants under their ground of appeal based on uncertainty and ambiguity was that the demolition and reinstatement works required BA approval, but the SBOs did not impose requirements for the submission of building plans, and gave no guidance as to how the approval could be obtained.

(2)  The BAT’s citing of Re Profit Success Development Ltd (unreported, CACV 87/2014, 22 December 2014) was misplaced because:

(a)  that case is factually distinguishable, because the SBOs are entirely silent on the need for seeking BA approval/agreement, so that the relevant degree of uncertainty is of a different magnitude; and

(b)  that case lays down only a general rule, and cannot preclude the BA from taking into account the circumstances of every case, where in this case the BA considered that guidance was necessary, but failed to include it in the SBOs in such a way as could not retrospectively perfect the deficiency in the SBOs.

(3)  Hence, the BAT failed to take into account relevant considerations and failed to give sufficient reasons.

53.There is no merit in this Ground 3.  As correctly submitted by Ms Ng, the argument advanced for the Applicants that the BA has a duty to provide guidance is not supported by the authorities and is contrary to the proposition laid down in the Profit Success case. There, the Court of Appeal held that a building order is required by law to tell the recipient clearly what he had done wrong and what he must do to remedy it.  But the case does not require the BA to provide any guidance for the Applicants to comply with the law.

J.  Result

54.Overall, I have reached the conclusions set out above – which in total lead to my having a real sense of unease as to the procedural fairness and rationality of the Determination.  With respect to the members of the BAT, I am afraid I do not accept that there was sufficient procedural fairness and integrity in the decision-making process, for the reasons I have explained.

55.In those circumstances, I allow the application for leave to apply, and the substantive application, for judicial review on Grounds 1, 2 and 4 (linked as I have expressed them to be).  As to the exercise of my discretion as to the appropriate relief to grant on those findings, I quash the Determination and direct the BAT to order that the material appeals of the Applicants to proceed to a full hearing.  I have considered the alternative relief of simply remitting the matter back to the BAT for reconsideration at a preliminary hearing, but see no benefit to any party in that course.

56.Of course, nothing I have said is intended in any way to influence the BAT’s approach to the full hearing and the decision to be made on the appeals after that hearing.  I emphasize that I have not been concerned in these proceedings with the ultimate merits on the appeals, which is something for the BAT to decide.

57.As to costs, I see no reason why the costs should not follow the event of this application, and therefore order the BA to pay the costs of the Applicants, to be taxed if not agreed.  However, I would reserve to the BAT the costs incurred in relation to the preliminary hearing, as some of those costs may logically be relevant to the conduct of the now directed full hearing, and the way in which those costs should be dealt with may properly be influenced by the conduct at, and the result of the appeals following, the full hearing.

58.Nevertheless, as I have not heard argument on costs, I make those orders on a nisi basis in the first instance.  The orders will become absolute if neither party seeks variation of them within the next 14 days.  Any variation application made will be dealt with on paper.

Mr Kevin Lau, instructed by Jingtian & Gongcheng LLP, for the applicants

Ms Queenie W. S. Ng, instructed by the Department of Justice, for the putative interested party