In Re Peninsula Knitters Ltd.

HCMP003788/1992

HCMP No. 3788 of 1992

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

______________

Coram: The Hon. Mr. Justice Mayo in Court

Date of hearing: 21 April 1993

Date of delivery of judgment: 28 April 1993

_______________

J U D G M E N T

_______________

1. The Applicant is applying for a judicial review of the Building Authorities' decision to disapprove building plans dated the 27th July 1992. This decision was contained in their letter of the 25th August.

2. The Applicant wishes to redevelop an Industrial Site in Tsuen Wan.

3. There is quite a lengthy history to the application. The Applicant first applied to the Building Authority in February 1990. This application was refused on the 19th April. A second application was lodged on the 2nd June 1990 and refused on the 31st July. Both these applications were refused on the grounds referred to in S.16(1)(d) and (i) of Cap. 123.

4. The Applicant made a third application on the 24th August 1990 which was refused on the 8th October on the same grounds. I will refer to this application as the August 1990 application.

5. It is the Applicant's contention that the Building Authority's purported refusal was notified to the Applicant more than 30 days after the date when the plans were last submitted to the Building Authority and consequently fell foul of S.15(1) of the Building Ordinance Cap. 123 when read in conjunction with Regulation 30(3) of the Building (Administration) Regulations.

6. S.15(1) is as follows :-

"15. Approval and consent deemed to be given unless refusal notified

(1) Where an application is made in the prescribed form for the Building Authority to approve plans or to consent to the commencement of building works or street works, he shall be deemed to have given his approval or consent, as the case may be, unless within the period prescribed by the regulations he has notified his refusal to give his approval or consent, as the case may be, in writing setting out the grounds for such refusal, and where one of such grounds is that 6 further particulars and plans are required, he shall specify such plans and particulars. (See Forms 9 & 13)"

7. Regulation 30(3) is in these terms :-

" (3) For the purposes of section 15 of the Ordinance, the period after which the Building Authority shall be deemed to have given his approval of plans submitted to him shall be -

(a) in relation to plans which are submitted for the first time to the Building Authority for approval, 60 days from the date on which the plans were submitted;

(b) in relation to plans which, having been previously submitted to the Building Authority for approval, are submitted to him again for approval so extensively revised as to constitute, in the opinion of the Building Authority, a major revision of such plans, 60 days from the date on which the plans were last submitted;

(c) in relation to any other plans which, having been previously submitted to the Building Authority for approval, are submitted, to him again for approval, 30 days from the date on which the plans were last submitted. (L.N. 121 of 1973)"

8. Mr. Ismail who represented the Applicant argued that once plans embodying specific ingredients and characteristics have been approved or deemed to be approved the requirements of S.14(1)(a) were satisfied. Rights in law have pro tanto accrued to the Applicant.

9. The latest plans referred to at the commencement of this judgment embodied substantially the said ingredients and characteristics of the August 1990 application and to this extent Mr. Ismail submitted that it was not open to the Building Authority to decline to approve the plans.

10. The Relief sought by the Applicant is :-

"1. A declaration that the purported disapproval of building plans dated 27th July 1992 ("the July 1992 building plans") relating to the proposed development of an industrial site situated at Wang Lung Street and Ma Kok Lane in D.D. 446 Lot 284 R.P. Tsuen Wan ("the Site") on the part of the Building Authority in its letter dated 25th August 1992, was and is invalid and of no effect.

2. A declaration that the Building Authority has no entitlement to disapprove the July 1992 building plans or any other building plans relating to the proposed development of the Site in respect of those specific features, elements, ingredients and characteristics which were reproduced from building plans dated 24th August 1990 (" the August 1990 building plans") relating to the proposed development of the Site.

3. A declaration that the August 1990 building plans are approved plans within the meaning of Section 15 of the Buildings Ordinance, Cap. 123.

4. A declaration that the purported disapproval of the August 1990 building plans on the part of the Building Authority in its letter dated 8th October 1990, was and is invalid and of no effect.

5. An Order directing the Building Authority to approve the July 1992 building plans and any other building plans relating to the proposed development of the Site in respect of those specific features, elements, ingredients and characteristics which were reproduced from the August 1990 building plans relating to the proposed development of the Site.

6 Further or alternatively to the reliefs sought at paragraphs 1 to 5 inclusive above, such remedy, relief or order as the Court considers appropriate and just in the circumstances."

11. I agree with Mr. Bradley for the Respondent that in reality the Declarations in paragraphs 3 and 4 are the material ones in this application.

12. I think that both Mr. Ismail and Mr. Bradley agreed that the answer to the question as to whether the deeming provision operated lay in the inter relationship between Building (Administration) Regulation 30(3) which I have already referred to and Regulation 29(3) which is in these terms.

" (3) Without prejudice to regulation 30(3), the submission of further particulars or other plans consequent upon the refusal of the Building Authority to give his approval under section 16(1)(i) or (2)(f) of the Ordinance shall be deemed to be a fresh application in respect of the plans which the Building Authority had refused to approve. (L.N. 152 of 1971; L.N. 121 of 1973)"

13. What it boils down to is whether the Building Authority had 30 or 60 days available to it to make its determination whether or not to approve the August 1990 plans.

14. Mr. Ismail argued that the main focus should be directed to Regulation 30(3) rather than Regulation 29(3). Both these Regulations had been enacted in their present form by the Building (Administration) (Amendment) Regulations 1973.

15. The effect of these amendments was to repeal the existing 28 day period in the Regulations and substitute for it 3 categories of time.

1. 60 days for applications submitted "for the first time".

2. 60 days for applications which embodied substantial revisions of such plans.

and 3. 30 days in all other cases.

16. There was a requirement for cases coming within the second category for the Building Authority to give Notice to an Applicant that it was of the opinion that substantial revisions were involved. It was common ground that no such Notice had been given in respect of the August 1990 plans.

17. Mr. Ismail submitted that Regulation 30(3)(c) governed the position on the August 1990 plans. It was important to note that Regulation 29(3) only referred to a "fresh application" and not to a first application. The two were not synonymous. It could well be the case that a second or subsequent application could be regarded as being a "fresh application".

18. The way he put it in his very helpful skeleton argument was :-

"(d) Regulation 30(3)(c) applies because the plans are plans submitted to the Building Authority "again for approval" having been "previously submitted to the Building Authority for approval".

They are not "plans ... submitted to the Building Authority for approval for the first time," and "plans which are resubmitted for approval so extensively revised as to constitute, in the opinion of the Authority, a major revision of the plans last submitted to him".

These resubmissions can never be "plans ... submitted for the first time to the Building Authority for approval" because there can only be one "first time" submission."

19. He also argued that the reference to "other plans" in both Regulation 29(3) and Regulation 30(3)(c) supported his contention that there was a close nexus between these Regulations and that what the legislature had contemplated was that if plans did not come within the criteria of Regulation 30(3)(a) or (b) approval had to be forthcoming within 30 days if the deeming provision was not to become operative.

20. This, I accept is an attractive argument. I do not though consider that it is correct. I accept the validity of the submission made by Mr. Bradley that if this argument was correct, Regulation 29(3) would be rendered redundant. Mr. Ismail's answer to this was that even on his interpretation of the legislation Regulation 29(3) would at least have the effect of stopping time running and it would serve some purpose. I do not think that this is right. The fact that reference is made in Regulation 29(3) to section 16(1)(i) and (2)(f) would suggest to me that the legislature definitely intended that the operation of Regulation 30(3)(c) was subject to Regulation 29(3).

21. Mr. Bradley submitted if Regulation 30(3)(c) was subject to Regulation 29(3) there was no necessity for the Building Authority to give any notice to the Applicant under Regulation 30(4) and the failure of the Authority to give any such Notice was therefore not a relevant consideration. I accept that this is correct.

22. For the reasons I have given I am satisfied that the relevant period for the Building Authority to approve the plans was 60 days and not 30 days as contended for by the Applicant. This is a matter of some importance because unless the Applicant is able to maintain the subsistence of the deemed approval of the August 1990 application, it will be subject to the Tsuen Wan Zoning Plan which was gazetted on the 19th October 1990 which substantially reduces the maximum plot ratio for buildings in the area.

23. The application is dismissed. I make an order nisi that the Respondent is to have its costs.

Representation:

Mr. Anthony Ismail (Kao Lee & Yip) for Applicant.

Mr. Nicholas Bradley, S.C.C. (Attorney General's Chambers) for Respondent.