Anthony John Steains v. Appeal Tribunal (Buildings)

HCAL 2451/2025

[2026] HKCFI 1694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2451 OF 2025

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J U D G M E N T

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A. Introduction

1.The Applicant and his wife are co-owners (“Owners”) of a house at the Redhill Peninsula, 18 Pak Pat Shan Road, Hong Kong (“Property”). The Building Authority (“BA”) issued a demolition order (“Order”) under section 24(1) of the Building Ordinance Cap 123 (“BO”), requiring the Owners to demolish various building works.  Despite the option of doing so, the Owners did not appeal against the Building Order to the Appeal Tribunal (Buildings) (“BAT”).  However, later they requested the BA to stay execution of the Order, which the BA refused.  The Owners sought to appeal from that refusal to the BAT.

2.In these proceedings, commenced by Amended Form 86 (“AF86”) dated 3 November 2025, the Applicant challenges the ‘decisions’ (collectively, “Decisions”) made by the BAT in relation to that request for a stay of execution of the Order.  The Applicant’s intended challenge is to:

(1)     the BAT’s express and/or implied decision in respect of Case No. 210-2024 (“Appeal”) contained and/or shown in a letter dated 1 September 2025 (“Letter”), namely its inaction, failure and/or refusal to hear, determine, dispose of and/or otherwise further process the Appeal; and

(2)     the BAT’s express and/or implied decision in respect of the Appeal contained and/or shown in the Tribunal’s conduct since the issuance of the Letter, namely its inaction, failure and/or refusal to hear, determine, dispose of and/or otherwise further process the Appeal.

3.By way of relief, the Applicant seeks:

(1)     an order of certiorari quashing the Decisions;

(2)     an order that the Appeal be remitted back to a differently constituted BAT and that the BAT consider the Appeal in accordance with the directions from the Court;

(3)     further or alternatively, an order of mandamus that the BAT shall proceed with the Appeal in accordance with the provisions under Part 6 of the BO and the Building (Appeal Regulation) Cap 123L (“BAR”).

4.The Applicant put forward three intended grounds of review:

(1)     the BAT committed a jurisdiction error and/or error of law by wrongfully failing and/or refusing to hear, determine, dispose of, and/or otherwise further process the Appeal (whether by its inaction or otherwise);

(2)     the Decisions are tainted with procedural impropriety, in that the BAT failed to conduct a preliminary hearing and/or a full hearing before determining the Appeal and/or coming to the Determinations; and

(3)     the Decisions were overall unreasonable in the public law sense.

5.It seems to me that Grounds 1 and 2 are interconnected and/or may impact one on another.  As to Ground 3, there is no dispute that it stands and/or falls with the first two grounds, and the parties largely rely on the facts and arguments deployed in the first two grounds.  I will therefore only consider in detail below the first two grounds.

6.The AF86 also requested an oral hearing of the application for leave, in the event that the Court was minded not to grant leave on the papers.  I gave directions to bring the application to a ‘rolled-up’ hearing, which was eventually heard on 9 February 2026.  At the hearing, the Applicant was represented by Mr Ernest Ng and Mr Raphael Leung of Counsel. The BA was represented by Mr Joseph Wong of Counsel.  As would be expected, the BAT did not appear and was not represented.

7.At the end of the argument at the hearing, I reserved my decision to be handed down later.  This is my Judgment.

B.     Background

8.The factual and procedural background of this case is largely undisputed by the parties.

9.As stated, the Applicant and his wife are the Owners of the Property.

10.Following a soil washdown which occurred on 7 to 8 September 2023, the Buildings Department and the Lands Department commenced a large-scale joint operation, amongst other things, to combat allegedly unauthorised building works in properties situated on the Redhill Peninsula.  As a result, the BA issued various removal orders under section 24(1) of the BO requiring owners of various properties in the Redhill Peninsula to demolish various building works since then.

11.This included the Order dated 22 September 2023, requiring the Owners to demolish various building works including, under item (ix), a “structure erected under the Master Bedroom Level (Level 1) and extending onto the Garden” (“Subject Structure”) in the Property, and reinstate the parts of the Property so affected by the Subject Structure (collectively, “Subject Work”).

12.No appeal to the BA was made by the Owners before the expiry of the 21-day period within which they might have appealed the Order to the BAT.

13.In or about early October 2023, the Owners appointed Mr Lam Siu Tong (“AP”) of P&C Engineering Consultancy Co to coordinate the Subject Work.  Correspondence between the AP and the BA ensued.

14.By letter dated 19 April 2024, the AP (on behalf of the Owners) wrote to the BA:

(1)     to inform the BA that given the extensive coverage of the Subject Structure, the Subject Work may have an adverse effect to the structural stability of the Property, and

(2)     to enquire with the BA whether, as a matter of principle, compliance with the Order in respect of the Subject Structure can be achieved with its retention, provided that the space created underneath would be effectively blocked up without access for habitation purposes so as to put an end to the contravention of the BO (“Alternative Proposal”).

15.On 30 April 2024, the BA rejected the Alternative Proposal.

16.By letter dated 16 May 2024, the Applicant proposed that compliance with the Order be stayed pending determination of the appeals to the BAT brought by neighbouring owners of the Redhill Peninsula against similar demolition orders made by the BA in the joint operation (“Stay Request”).

17.On 6 August 2024, the BA refused the Stay Request (“Stay Decision”).

18.By a Notice of Appeal (“NOA”) lodged with the Secretary to the BAT (“Secretary”) on 23 August 2024, the Applicant sought to appeal against the Stay Decision pursuant to section 44 of the BO (“Appeal”). The BAT assigned a case number of 210-2024 (but without acknowledging the receipt of the NOA), and the Secretary informed the parties that they would be notified of any direction from the BAT in writing.

19.By letter dated 19 September 2024, HY Leung & Co LLP (“HYL”), the Applicant’s Solicitors, requested the BAT to grant an extension of 28 days to file the Applicant’s Statement of Particulars from the date on which the BAT acknowledges receipt of the Appeal as per its usual practice.

20.By letter dated 3 October 2024, the Secretary informed HYL that the Chairman of the Tribunal (“Chairman”) had directed that the appeal relating to the Order had lapsed and there was no issue in regard to time extensions for filing further documents (“1^st Direction”). No other reason was given.

21.By letter dated 14 October 2024, HYL: (1) clarified that the subject matter of the Appeal was the Stay Decision as opposed to the Order; (2) reiterated that the Chairman alone (as opposed to the BAT) has no power to determine the Appeal pursuant to sections 43, 48, 49 and 50 of the BO; and (3) requested the Chairman to clarify the 1^st Direction and disclose his identity.

22.On 24 January 2025, the Chairman responded that “further clarification and disclosure of identity of the Chairman is not necessary”.

23.By letter dated 8 April 2025, HYL requested the BAT to clarify the basis of giving the 1^st Direction.  On the same day, HYL also requested the BA to put on hold any enforcement of the BA’s decision dated 6 August 2024 (i.e. the Stay Decision) and/or any actions or works in connection with the Order, on the basis that the Applicant had filed the NOA.

24.On 22 July 2025, the BA refused to put on hold any enforcement of the Stay Decision and the Order.

25.By Letter dated 1 September 2025, the BAT replied, amongst other things, that:

(1)     Given the Applicant has not appealed against the Order, the Order remains in force.

(2)     It was not appropriate for the Owners to rely subsequently on the response (not a decision) of the BA dated 6 August 2024 as a basis for launching an appeal, to revisit issues that would have been dealt with if an appeal had been launched pursuant to the Order.

26.The full terms of the letter are as follows:

The letter dated 8 April 2025 from the Appellant refers.

The reply of the Appeal Tribunal (Buildings) is as follows:

The removal [Order] issued by the [BA] to [the Property] was dated 22 September 2023, in which the works required to be carried out by the Owners of [the Property] were clearly itemised.  The Owners of [the Property] were required to commence the works ordered by the [BA] as specified within 90 days and complete such works within 150 days of the date of the Order, all to the satisfaction of the [BA].

If the Owners of [the Property] wished to appeal against the Order of the [BA], a Notice of Appeal in writing should have been launched together with a copy of the Order directly on the Secretary to the Appeal Tribunal (Buildings) not later than 21 days after the date of the Order.  This was not done.  No such Notice of Appeal was received and therefore the Order remained in force.

For the Owners of [the Property] to engage a consultancy firm to enquire of the [BA] on 16 May 2024 and to rely subsequently on the response (not a decision) of the [BA] dated 6 August 2024 as a basis for launching an appeal, the alleged notice of which includes an issue of “whether the structure detailed in item (ix) of the Order could be retained without non-compliance with the Order” is not an appropriate way to revisit issues that would have been dealt with if a Notice of Appeal had been launched pursuant to the Order.

27.The BAT has not further processed the Appeal to date.

C.     Relevant Statutory Provisions

28.As stated, the Order in this case was issued pursuant to section 24(1) of the BO.  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 BO.

29.There is no dispute that the Order was appealable under the BO, and that the time for appealing was 21 days.  In more detail as to appeals, the relevant provisions of the BO are as follows:

43.     Interpretation

(1)     In this Part—

Appeal Tribunal (上訴審裁小組) in relation to an appeal means the tribunal constituted under section 48 to hear and determine that appeal;

Chairman (主席) in relation to an Appeal Tribunal means the person appointed as its chairman under section 48(1);

44.     Appeals from decisions of Building Authority

(1)     A person aggrieved by any decision made by the Building Authority in the exercise of a discretion conferred on him under this Ordinance may, except where this Ordinance provides otherwise, appeal from that decision in accordance with this Part and regulations made under section 38(1B).

(2)     If—

(a)     a decision appealed from under subsection (1) requires the carrying out of works; and

(b)     a notice of appeal as regards that decision is given under section 47,

subject to subsection (3), with effect from the day the notice is so given, the Building Authority shall neither enforce nor permit the enforcement of such decision, until the appeal is disposed of or unless it is withdrawn or abandoned.

(3)     The Building Authority may enforce a decision referred to in subsection (2) or permit its enforcement where he is of the opinion that an emergency exists and that having regard to that emergency such enforcement is necessary and serves a notice on the appellant stating that due to an emergency the enforcement of the decision and the carrying out of works or other action is necessary.

(4)     The decision of the Building Authority that an emergency exists for the purposes of subsection (3) shall not be subject to an appeal under section 44.

47.     Notice of appeal

A person exercising the right of appeal conferred by section 44 shall give notice of appeal in the prescribed manner, appealing from the relevant decision, to the Secretary to the Appeal Tribunal, to be received by him not later than 21 days after the date notification of the decision is sent to him.

48.     Appeal Tribunal

(1)     Where a notice of appeal is given under section 47, the Chief Executive shall appoint, from the Appeal Tribunal Panel, a tribunal consisting of a Chairman and not less than 2 members, for the purpose of hearing and determining the appeal to which the notice relates.

49.     Preliminary hearing

(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.

50.     Determination of appeal

(1)     The following shall apply in relation to the hearing and determination of an appeal or a preliminary hearing held under section 49—

(a)     every question shall be determined by the opinion of the majority of the members of the Appeal Tribunal;

(b)     where there is an equality of votes, the Chairman shall have a casting vote;

(c)     the Appeal Tribunal may—

(i)     receive and consider any oral, documentary or other evidence, (including any written statement), whether on oath, affirmation or otherwise, and whether or not it would be admissible in evidence in proceedings in a court;

(ii)     by summons issued in the prescribed manner, require any person to attend before it at any hearing to give evidence or to produce any document;

(iii)     administer oaths or affirmations;

(iv)     examine on oath, affirmation or otherwise any person attending before it and require such person to answer any question put by or with the consent of the Tribunal.

(2)     In determining an appeal, the Appeal Tribunal may make an order confirming, varying or reversing the decision that is appealed against or substituting therefor such other decision or make such other order as it thinks fit.

53D.    Chairman’s power to determine procedure

The Chairman may, as regards a particular hearing, determine the procedure in relation to a matter if provision has not been made in this Part or regulations under section 38(1B) for the procedure in respect thereof.

30.Hence, if an appeal lies and is brought, then sections 44, 49 and 50 provide, amongst other things:

(1)     Subject to the existence of an emergency, the BA shall neither enforce nor permit the enforcement of a decision requiring the carrying out of works, until the appeal is disposed of or unless it is withdrawn or abandoned.

(2)     The appeal can be dealt with in one of two ways, being (1) at a preliminary hearing, or (2) at a full hearing.

(3)     The holding of a preliminary hearing may lead to a full hearing if the BAT determines cause has been shown for having a full hearing.

(4)     Alternatively, if there is no preliminary hearing, the appeal will go straight to a full hearing.

31.In Benver Co Ltd v. Appeal Tribunal (Buildings) [2023] 2 HKLRD 1201 at §§45-48, I sought to identify the proper approach to a preliminary hearing, which (insofar as may be material for present purposes) included the following:

(1)     Section 49 of the BO 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)     The burden rests squarely on the appellant to show to the BAT that there is a good cause for holding a full hearing.

(4)     Whether an appeal has merit such as to cause a full hearing must be determined by reference to the materials placed before the BAT by the parties.

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

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

(7)     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.

32.Section 4 of the BAR sets out the Statement of Particulars to be provided by the appellant to the Secretary:

4.     Statement of particulars

(1)     The appellant shall, within 28 days beginning on the date notice of appeal is given or, where appropriate, within the extended period, furnish to the Secretary a statement containing—

(a)     the particulars of the decision to which the appeal relates;

(b)     the grounds of appeal if they have not been specified in the notice of appeal;

(c)     a detailed description of the matter to which the appeal relates;

(d)     a description of each document the appellant intends to produce at the hearing;

(e)     where relevant, the address and description of any property or land to which the appeal relates and a statement of the interest of the appellant in that property or land; and

(f)     the particulars of the witnesses the appellant intends to call on his behalf at the hearing.

(2)     The appellant shall serve a copy of the statement referred to in subsection (1) on the Building Authority within the period or extended period, as may be appropriate, referred to in that subsection.

33.By default, the Statement of Particulars is to be furnished within 28 days from the date on which notice of appeal is given. In the present context, the nature of the particulars to be given can be noted.

34.Section 11 of the BAR provides for dismissal of the appeal as follows:

11.     Consequences of failure by appellant to furnish statements, particulars, etc.

Where the Tribunal is satisfied that the appellant has failed to—

(a)     serve a copy of the notice of appeal on the Building Authority under section 3(3);

(b)     furnish a statement under section 4(1) or serve a copy of it under section 4(2); or

(c)     comply with a request made under section 6(2),

it may dismiss the appeal.

35.Section 13(1) provides the BAT with the power to extend any time limits specified in section 4(1) upon application by a party, if it considers it appropriate to do so.  Section 13(2) states that the power to extend may be exercised by the Chairman.

D.     Ground 1: Jurisdiction Error/Error of Law

36.The Applicant contends that the BAT committed a jurisdiction error and/or error of law by wrongfully failing and/or refusing to hear, determine, dispose of and/or otherwise further process the Appeal (by its inaction or otherwise).

37.Mr Ng submitted that the principal dispute in question was (1) whether the Stay Decision is an appealable decision under section 44(1) of the BO, and (2) whether the BO mandates the BAT to hold a preliminary hearing before disposing of the Appeal.

38.It is well settled in Hong Kong that, where there is an available statutory appeal procedure to challenge a decision made by a public body, the Court would not permit judicial review to be used to challenge the appealable decision.

39.As to the first question of whether the Stay Decision is one that is appealable, Mr Ng framed it as whether the Stay Decision (1) amounts to a decision as opposed to a mere “response”, and (2) was made by the BA in the exercise of a discretion.

40.As stated, section 24 empowers the BA to make inter alia orders for demolition.  But, section 46 of the Interpretation and General Clauses Ordinance Cap 1 (“IGCO”) provides as follows:

46.     Power to make public instruments and perform acts

Where any Ordinance confers power upon any person to make, grant, issue or approve any proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list, such power shall include power—

(a)     to amend or suspend such proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list;

(b)     to substitute another proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list for one already made, granted, issued or approved;

(c)     to withdraw approval of any proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list so approved; and

(d)     to declare the date of the coming into operation, and the period of operation, of any such proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list.

41.Mr Ng referred me to Incorporated Owners of Tak Fan Lau v Building Authority [2021] HKCFI 902, where Chow J (as he then was) held that the BA has the power to withdraw a building order by virtue of section 46 of IGCO.  I do not think Mr Wong sought to challenge that proposition (though factually that is not what has occurred in this case).

42.Mr Ng submitted that the power to stay/suspend and to withdraw a building order is therefore within the ambit of section 24(1) of the BO, and can properly be regarded as a power conferred on him under the BO.  As such, the Applicant could (and should) have challenged the Stay Decision by way of an appeal under section 44(1) of the BO: see Tak Fan Lau §§25-27.

43.However, Mr Wong argued this was a different situation from Tak Fan Lau, where the very subject matter of the building order was challenged.  Mr Wong submitted this was instead a scenario where there was no direct challenge against the substantive Order.  Hence, the Order is valid, and the refusal of the Stay Request was merely a routine administrative decision in pursuit of enforcement of that substantive Order, rather than an independent exercise of discretion.

44.As will be seen, I agree with this distinction. In refusing the Stay Request, the BA was merely requiring the Applicant to comply with an undisputed and extant building order, i.e. the Order.

45.As to whether the Stay Decision was a decision made by the BA in the exercise of discretion, reference can be made to King Glare Limited v Secretary for Justice (on and for behalf of Building Authority) [2008] 6 HKC 450.  There, the applicant sought to challenge not only the building order, but also recent actions by the BA seeking to enforce the order.  Lam J (as Lam PJ then was) held at §58 that, where a challenge against the building order itself failed, the applicant had “no viable ground for attacking the Building Authority on the recent actions which are merely further steps down the road under the enforcement regime laid down in Section 24”.  This would support a reading that the Stay Decision is not an independent exercise of discretion by the BA, but rather simply a “further step” in enforcement of a valid preexisting building order.

46.In Mutual Fine Limited v Building Authority (Appeal Tribunal (Buildings) Case No. 286/2021, 20 March 2025), the BAT held at §21 that a letter from the BA refusing a demolition and reinstatement proposal in response to a building order was not a decision pursuant to section 24(1) of the BO, and was not an exercise of a discretion conferred on the BA under the BO.  The BAT also further held that the BA “only exercised such discretion in the Order”; thus, the letter was not amenable to appeal.

47.There are no such provisions in the BO which confer a discretion on the BA not to enforce an order after the appeal process is disposed of, for example where the prescribed statutory time limit to lodge a Notice of Appeal under section 47 of the BO or a Statement of Particulars under section 4 of the BAR has lapsed.  Those sections impose requirements for the recipient of the building order to act within the time prescribed.

48.The decision to enforce may be pushed back (for example by a stay decision pending determination of the appeal), but it does not detract from the fact that the BA’s obligation to enforce the building order remains: see Peter and Stephanie de Kantzow v Building Authority (Appeal Tribunal (Buildings) Case No. L/M 9/2004, 10 November 2009) (“Kantzow (BAT)”)at §19.  Therefore, there is no exercise of discretion where the decision is one which relates to the obligation to enforce.

49.I conclude that the Stay Decision was not a decision made in the fresh exercise of discretion by the BA, and therefore is not one that is appealable under section 44 of the BO.

50.If it were otherwise, that would mean that:

(1)     a person served with a building order could choose not to appeal the building order, but instead write one or a series of letters requesting it not to be enforced (or for enforcement to be suspended), and the response would give rise to another or a series of other appealable decisions; or

(2)     if the BA issues a building order, and the recipient of the order neither appeals nor complies with the order, but instead after the imperative time limit of 3 weeks within which an appeal must be lodged expires, the BA decides to enforce the order, that decision would be appealable.

51.With respect, that simply cannot be right.  If the decision to enforce is a fresh exercise of discretion within the purview of section 44(1) of the BO, the recipient of the order would in effect be given back his right to appeal, which was lost through his choice or inaction or mistake.  Such an interpretation would allow the recipient of an order unjustly to profit from his own choice/inaction/mistake. It would be a cyclical and illogical process that would invite an abuse of process.

52.Put simply:

(1)     A building order on its own terms and effect requires compliance or enforcement, and the person receiving it knows that he must comply or face enforcement.

(2)     However, when in receipt of a building order, the person can choose to appeal or not.

(3)     If he does not appeal, there is no provision that prevents enforcement.

(4)     That is so, even if other persons have been served with similar building orders and they have chosen to appeal.

(5)     The effect of making an appeal (absent circumstances of emergency) will trigger the inability on the part of the BA to enforce the building order pending the determination of the appeal.

(6)     Therefore, if the person wishes to trigger a stay in enforcement, he can and must appeal within the time permitted for such an appeal.

(7)     If there is no statutory stay of enforcement because there is no appeal, being told that the effect of the building order will be carried forward (through enforcement if necessary) adds no more than is already the result of the making of the building order.

(8)     In the absence of an appeal against the building order, a refused request for a stay of the building order does not reflect the exercise of any fresh discretion which affects existing rights or obligations.

(9)     Those rights and obligations are reflected in the building order itself, which remains extant.

53.Lastly, it is to be remembered that the Applicant requested a stay of the Order because he wished steps in enforcement to await the outcome of other appeals, which he said are likely to determine matters which are similar to, or might impact, the Applicant’s own position as regards the Property.  However – even leaving aside the uncertainty as to whether what is determined in the other appeals would actually impact the Applicant’s Property – I do not think the Applicant can in effect seek belatedly to ‘ride on the coattails’ of other appellants against other building orders, in the circumstances that he must be taken to have chosen not to appeal the Order actually applicable to him and to his Property.

54.As to the second question, namely whether the BO mandates the BAT to hold a hearing, this can be dealt with relatively quickly, where I do not think this question is engaged where the Stay Decision is not appealable.

55.I accept Mr Ng’s core submissions that if there is an appeal from an appealable decision:

(1)     The BO mandates the BAT to hold either a preliminary hearing or full hearing before it is in a position to dispose of an appeal.

(2)     Section 49 of the BO empowers the BAT to dismiss an appeal at a preliminary hearing where no good cause has been shown for holding a full hearing.

(3)     So – subject to the next point – at the very least the BAT must hold a preliminary hearing.

(4)     The only statutory provision which empowers the BAT to dismiss an appeal without a hearing lies in section 11 of the BAR, which allows the BAT to dismiss an appeal if an appellant fails to furnish a statement of particulars by the timeline stipulated under section 4(1), i.e. within 28 days beginning on the date notice of appeal is given.

56.I also note that the provisions relating to costs found in section 51 of Part 6 of the BO identify that the power to make a costs order only arises upon the making of an order at a preliminary hearing or a full hearing.  The statutory scheme therefore envisages that, at the very least, a preliminary hearing will be held as that is the first opportunity for the BA to recover costs if no full hearing is due to take place.

57.I think this is clear enough just from the provisions of the BO itself, and I mean no disrespect to the industry of Counsel if I do not rehearse nor address at any length the various authorities canvassed on this particular point.  But, as I have said, this presupposes that there is a true appeal (namely one from an appealable decision).

58.Ground 1 is not reasonably arguable with any realistic prospect of success.  Alternatively, even if there is a proper basis for the grant of leave, I would refuse Ground 1 on substantive hearing.

E.     Ground 2: Procedural Impropriety

59.It is the Applicant’s contention that the Decisions are tainted with procedural impropriety, because the BAT failed to hold a preliminary hearing and/or a full hearing before determining the Appeal and/or coming to the Decisions.  The complaint is said to be grounded in both statute and common law.

60.Mr Ng submitted that:

(1)     The failure to follow the procedural requirements prescribed by statute – either a preliminary hearing and/or full hearing – means that the Decisions were tainted with procedural impropriety for want of compliance.

(2)     Further or alternatively, insofar as the Statute did not prescribe a mandatory procedure of conducting a preliminary hearing and/or a full hearing before the BAT can dispose of an appeal, the refusal further to process the appeal contravenes the common law natural justice procedural requirement based on principles of fairness.

(3)     An opportunity to make representations by a person who may be adversely affected by a decision is often required as amount of fairness.

(4)     The principles of natural justice also include the right of a party to present his case and have his case heard.

(5)     The Tameside duty of inquiry required the BAT to ask itself the right question and take reasonable steps to acquaint itself with the relevant information to enable it to answer the question correctly.

(6)     Here, the hearing before the BAT is a de novo consideration of the Stay Request.

(7)     The Stay Request concerns the Order, requiring the Owners to demolish a building structure within a specified period, failing which there could be criminal prosecution and liability on conviction to a fine and/or imprisonment.

(8)     In deciding whether to exercise its discretion to stay the Order, it would be necessary to consider (a) the legality of the Order (bearing in mind very similarly worded orders currently pending appeal to the BAT), and (b) the safety of the Subject Structure (which is a matter of expert evidence).

(9)     In light of the potential drastic consequences faced by the Applicant if the Stay Request is not acceded to, fairness required the Applicant to be afforded the chance to present, to hear evidence, to challenge the evidence, to call evidence himself, and to present his case to the BAT before it determines the questions of law and/or fact.

61.With respect, I do not think that Ground 2, or the submissions advanced upon it by Mr Ng, add to the analysis under Ground 1.  Indeed, once Ground 1 fails, the structural underpinning to the intended Ground 2 falls away.

62.Indeed, the contrary potential for abuse is evident from the submissions themselves.  The suggestion that the BAT, in deciding whether to exercise its discretion to stay the Order, would necessarily consider (a) the legality of the Order (bearing in mind very similarly worded orders currently pending appeal to the BAT), and (b) the safety of the Subject Structure (which is a matter of expert evidence), clearly identifies that the Applicant would wish to canvas the points that he might have canvassed had he chosen to appeal, and is seeking to canvas those points notwithstanding that he chose not to appeal.

63.Further, though the Applicant did not do so, the provision of any Statement of Particulars would again only have demonstrated that the Applicant would seek to raise and have determined issues which would have arisen on an appeal, had he actually made one.

64.I also accept Mr Wong’s submission that in Peter A De Kantzow and Stephanie S de Kantzow v The Appeal Tribunal (unreported, HKCA 280, 8 October 1991) the Court of Appeal held that the requirement to give notice of appeal in writing was imperative rather than directory, and hence a statutory provision which mandates something be done within a time limit is imperative and all subsequent proceedings in spite of the expiry of time are void.

65.Reference can also be made to Lee Mun Yew (李滿堯) v Building Authority [2019] 1 HKLRD 212, where Chow J (as he then was) at §9 agreed with the Court of Appeal’s findings in the de Kantzow case, and further held the time limit under section 47 of the BO cannot be extended by the mere device of seeking an extension or rescission of a building order from the BA and utilising the BA’s response as a fresh decision for the purpose of an appeal.  It was held that the decision of the BA to refuse the applicant’s requests for an extension of time to comply with the order or for rescission of the order cannot be regarded as an appealable “decision” for the purpose of section 44(1) of the BO.

66.Hence, I also agree with Mr Wong’s submissions that:

(1)     If a building order is to be challenged by an appeal – and the BA vexed with such a challenge – the strict time limit must be obeyed.

(2)     Once the time limit under section 47 has passed, there can no longer be any appeal lodged against the building order at all.

(3)     There is no dispute the building order, which should form the subject matter of any appeal, is valid.

(4)     All proceedings following are then void, and there is no requirement to hold any hearing, whether preliminary or full.

(5)     There is no other decision for the BA to make because the BA simply enforces the order.

67.To reiterate the points I have made above, the fact of the matter is the Applicant failed to comply with the prescribed time limits and through his own choice or fault lost his right to appeal, and subsequently his opportunity to present his case before the BAT.  It seems to me the Applicant is essentially asking for a “second bite at the cherry” by the back door, by saying that the Order should stand or fall with other building orders, which are actually currently the subject of other appeal proceedings.  Far from it being procedurally improper or unfair to prevent the Applicant from adopting that course, to allow the Applicant to do so would be to allow an abuse of process and be contrary to the principles of natural justice.

68.In those circumstances, there is neither procedural impropriety nor any unfairness of the kinds advanced on behalf of the Applicant by Mr Ng.

69.Ground 2 is not reasonably arguable with any realistic prospect of success.  Alternatively, even if there is a proper basis for the grant of leave, I would refuse Ground 2 on substantive hearing.

F.     Ground 3: Wednesbury Unreasonableness

70.As stated, Ground 3 stands or falls with the other two grounds.  Therefore, it falls.

G.     Result

71.It seems to me that, far from being in error, the BAT’s Letter dated 1 September 2025 (quoted above) correctly and succinctly summarized the position.  In short, the BAT’s jurisdiction to hear the “appeal” was simply not engaged.

72.Grounds 1 and 2 are not reasonably arguable with realistic prospect of success, and/or in any event would and do fail on substantive review.  As stated, Ground 3 adds nothing to them.

73.As to the minor point that an appeal number was issued in respect of the subject matter of this action, I agree with Mr Wong that it is an administrative and/or procedural step in the overall BAT process, rather than any acceptance or acknowledgment that the BAT explicitly considered the NOA as seeking to challenge an appealable decision.  The mere filing of a notice of appeal does not create an actual “appeal” if the notice of appeal relates to and seeks to challenge a “decision” which is not an appealable decision.

74.Therefore, the Applicant’s judicial review application is dismissed.

75.As to costs, I see no reason why costs should not follow the event, and I order the BA’s costs to be paid by the Applicant, to be taxed if not agreed.

Mr Ernest Ng and Mr Raphael Leung, instructed by HY Leung & Co, for the Applicant

Putative Respondent, excused

Mr Joseph Wong, instructed by the Department of Justice, for the 1^st Putative Interested Party