Global Event Ltd v. Appeal Tribunal (Buildings Ordinance)

HCAL 995/2026

[2026] HKCFI 3351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 995 OF 2026

________________________

________________

__________________

D E C I S I O N

__________________

A.  Introduction

1.By Form 86 dated 1 June 2026, the Applicant seeks leave to apply for judicial review so as to challenge the Determination dated 6 March 2026 (“Determination”) made by the Appeal Tribunal (Buildings Ordinance) (“BAT”), concluding that the BAT had no jurisdiction to determine the Applicant’s proposed appeal to it, because the decision the subject of the intended appeal was not made in the exercise of a discretion conferred on the Building Authority (“BA”) under the Building Ordinance Cap 123 (“BO”).

2.Having considered the materials, and where no request for an oral hearing has been made, I am satisfied that it is appropriate to deal with this case on the papers.

3.This is my Decision.

B.  Background

4.The material background necessary for the purposes of considering the present application for leave to apply for judicial review can be dealt with quite shortly, as follows.

5.The Applicant is the registered owner of Villa Cornwall, Lot No. 387 in DD 376, Tuen Mun, New Territories (“Property”). The building plan was approved, and the occupation permit was issued, for the Property in 1967.

6.On 25 September 2017, the Buildings Department (“BD”) inspected the Property. Subsequently, on 2 November 2017, an order (“Building Order”) was issued by the BA under section 24(1) of the BO, requiring the Applicant to demolish the Unauthorised Building Works (“UBWs”) and to reinstate the parts of the building so affected in accordance with the original 1967 plan. The Building Order specified that the Applicant was required to appoint an Authorised Person (“AP”) and a Registered Structural Engineer (“RSE”) to coordinate the required works, and to submit remedial/removal proposals to the BA for agreement before commencing such works.

7.On its face, the Building Order reminded the Applicant that, should the Applicant wish to appeal against the Building Order, notice of appeal may be given to the Secretary of the BAT not later than 21 days after the date of the Building Order. No appeal was made.

8.Instead, on 21 August 2018, the Applicant’s AP submitted a demolition plan to the BA. However, on 15 October 2018, the BA disapproved the plan submitted, with main concerns including the demolition work as potentially affecting the adjacent slope and the stability of the building.

9.The Applicant sought to resolve the issue with the AP, resulting in a suggestion to submit a redevelopment proposal to the BA, instead of a reinstatement plan. Once the redevelopment proposal was approved, the whole building could be demolished more easily and safely. On 27 August 2020, the Applicant’s AP submitted the redevelopment proposal to the BA, and later sought an extension of time to submit revised demolition plan when the redevelopment plans approved.

10.On 20 October 2020, the BD disapproved the new building plan.

11.Thereafter, correspondence ensued between the Applicant, the BD and the Lands Department (“LandsD”) , seeking to resolve issues, requesting lease modifications and right-of-way expansion to accommodate the plan.

12.Later, following certain discussions in the Legislative Council, the Development Bureau issued a General Circular No. 1/2024 on 26 July 2024, titled ‘Adopting a facilitating and collaborative mindset’ (“DB Circular 1/2024”).

13.The Applicant followed up with the LandsD. On 6 May 2025, the Applicant’s AP sent a Surrender and Re-grant proposal to LandsD, which proposal apparently remains under review.

14.In the meantime, on 11 July 2024, the Applicant filed an Application for Modification and/or Exemption from the Provisions of the BO (Form BA16) (“Exemption Application”) for exemption from immediate demolition until the redevelopment proposal is approved.

15.On 20 November 2024, the BD issued a letter (“20/11/2024 Letter”) to inform the Applicant that the Exemption Application was refused. No reasons were given.

16.Aggrieved by that response, the Applicant sought to appeal to the BAT by Notice of Appeal dated 10 December 2024 (“NoA”). However, the BAT refused to accept the NoA. Instead, the BAT gave directions for the the Applicant and the BD to file submissions as to the validity of the NoA. Submissions were duly filed, and the BAT later issued a letter to advise on a Preliminary Hearing scheduled on 16 October 2025, to determine the validity of the NoA. Supplementary submissions were filed in advance of that hearing.

17.The Applicant suggests that its representative at the hearing, a Ms Yuen, was pressured to end her presentation quickly, and that the Chairman sought to cut short the hearing, deliberately did not pay attention, and deprived the Applicant of the legal rights for a fair hearing.

C.  The Determination

18.The BAT’s Determination was issued on 6 March 2026.

19.The BAT held that the 20/11/2024 Letter was not a decision made in the exercise of a discretion conferred on the BA under the BO, and therefore did not contain an appealable decision within the ambit of section 44 of the BO. It did so for the following broad reasons (in my summary of them):

(1)  Any right of appeal against the Building Order is time-barred under section 47 of the BO.

(2)  The NoA expressly referred to the ‘Exemption Application for [the Building Order]’.

(3)  Under section 42 of the BO, in special circumstances, the BA may by written notice permit modifications to and/or exemptions from the provisions of the BO, except for section 14.

(4)  By expressly citing the Building Order, and by use of the specified form BA16, the Applicant’s Exemption Application unequivocally indicated that it was seeking exemption from compliance with the Building Order issued under section 24 of the BO.

(5)  Describing the modification and exemption sought, the Form BA16 referred to “Exemption from 24(1)(a) to demolish the unauthorised building works according to the [Building Order]”.

(6)  Various circumstances were identified to support the Exemption Application, including that: (a) the UBWs had been in existence for over 10-30 years, and formed part of the house built in 1964; (b) demolishing the UBWs and parts of the house may cause collapse of the house, and may lead to collapse of the slope next door; (c) a previous demolition proposal was not approved by the BD; (d) the proposal is to demolish the whole house and rebuild instead, which would be less dangerous and more cost-effective; (e) a development plan submitted to the BD for approval in 2020 was not approved; (f) discussions are ongoing with LandsD; (g) once necessary approvals are obtained, a revised plan will be submitted to BD for approval; (h) in the meantime there is no evidence of danger, the occupiers have moved out, so that there is no safety issue whatsoever.

(7)  The 20/11/2024 Letter refusing to grant exemption from the Building Order is a continuation of enforcement action of the Building Order, for which the right of appeal has been time-barred.

(8)  The BA was making clear from the terms of the 20/11/2024 Letter that it was dealing with the Exemption Application as part of its enforcement action for the Building Order.

(9)  The decision to enforce is not a fresh exercise of discretion.

(10)  Indeed, the BA is obliged to enforce a building order once issued, where all judicial avenues of appeal have been exhausted, withdrawn, abandoned or the statutory time limit for appeal has expired.

(11)  Once an applicant failed successfully to challenge a building order, he cannot thereafter contest the enforcement actions arising from it.

(12)  Time for appealing from a building order cannot be extended by the device of seeking an extension or rescission, and utilising the BA’s response is a fresh decision for the purpose of an appeal under section 47 of the BO.

(13)  Further, as the Building Order was issued on the basis of non-compliance with section 14 of the BO, in making the Extension Application seeking exemption from the Building Order, the Applicant was in substance requesting an exemption from section 14 itself, which is expressly prohibited under section 42(5) of the BO.

(14)  In the circumstances and for those reasons, the BAT lacks jurisdiction to entertain the intended appeal.

20.Though that was a complete answer to the intended appeal, the BAT also went on to hold that: (1) section 46 of the Interpretation and General Clauses Ordinance Cap 1 (“IGCO”) does not lift the prohibition on the BA’s power of exemption for section 14, when the contrary intention is made express under section 42(5) of the BO; and (2) the BA has not improperly fettered its discretion.

D.  Intended Grounds of Review and Questions for Determination

21.The Form 86 identifies five intended grounds for judicial review, being:

(1)  Ground 1: The Applicant has the right to appeal.

(2)  Ground 2: The Tribunal has fettered its discretion, and failed to exercise its own discretion independently.

(3)  Ground 3: The Tribunal misinterpreted the BO and made an error of law in assuming that the intended appeal related to the original Building Order.

(4)  Ground 4: The Determination was unreasonable and irrational.

(5)  Ground 5: The Tribunal has acted unfairly and with procedural impropriety.

22.As will be seen below, the intended grounds have significant overlap or repetition in or underpinning them, though I will address them individually.

23.Unusually – and, with respect, neither helpfully and aptly – the Applicant has also set out in the Form 86 a series of questions (17 in all) which it says falls for determination in respect of each of the intended grounds of review. I do not think it necessary to set out those questions in full, but would merely remark that they are all posed as open-ended questions, such as “Does the applicant have the right to appeal?”, “Does the BA have the power and discretion to make exemptions on section 24(1)?”, “Is section 24 separate from section 14?”, “Can section 24 be exempted under section 42?”, and “Is it rational for the BA to insist on demolishing only the UBWs and reinstate to the original plan regardless of safety issues instead of allowing for the demolition the whole building (including the UBWs)?”

24.By way of relief, the Form 86 seeks (1) a determination on those questions of law (as they are described), (2) a declaration that the Applicant has the right to appeal from the 20/11/2024 Letter, (3) an order quashing the Determination, and (4) an order remitting the appeal back to a differently constituted, competent and impartial Tribunal.

E.  The Statutory Regime

25.As stated, the Building 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.

26.There is no dispute that the Building Order was appealable under the BO, and that the time for appealing was 21 days. As stated, there has been no appeal in this case against the Building Order. Of course, I note that the Applicant asserts that it was not seeking to challenge the Building Order in the intended appeal from the 20/11/2024 Letter.

27.In more detail as to appeals, the relevant provisions of the BO are as follows, where section 14 is in Part 2 ‘Control of Building’, section 42 is in Part 5 ‘Exemptions’, and sections 43 to 50 are in Part 6 ‘Appeals’:

14.  Approval and consent required for commencement of building works, etc.

(1)  Save as otherwise provided, no person shall commence or carry out any building works or street works without having first obtained from the Building Authority—

(a)  his approval in writing of documents submitted to him in accordance with the regulations; and

(b)  his consent in writing for the commencement of the building works or street works shown in the approved plan.

(2)  Subject to section 28B(4), neither the approval of any plans nor the consent to the commencement of any building works or street works shall be deemed—

(a)  to confer any title to land;

(b)  to act as a waiver of any term in any lease or licence; or

(c)  to grant any exemption from or to permit any contravention of any of the provisions of this Ordinance or of any other enactment.

42.  Building Authority’s powers of exemption

(1)  Where in the opinion of the Building Authority special circumstances render it desirable he may, on receipt of an application therefor and upon payment of the prescribed fee, permit by notice in writing modifications of the provisions of this Ordinance.

(2)  Every application for an exemption under this section shall be in the specified form, and shall be considered on its own merits by the Building Authority who shall not be required to take account of exemptions granted in the past.

(3)  A permit granted under this section may contain such conditions as the Building Authority shall deem necessary.

(4)  No such permit shall be granted to the prejudice of the standard of structural stability and public health established from time to time by regulations.

(5)  This section shall not apply to section 14.

(6)  The breach of or failure to perform or to consent to any condition attached to a modification or exemption granted under this section shall render such modification or exemption invalid, and thereupon the purported grant of such modification or exemption shall be no defence to any proceedings for non-compliance with the provisions of this Ordinance.

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.

28.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.

29.The proper approach to a preliminary hearing includes 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.

(8)  The BAT may refuse to hold a full hearing where it is satisfied that there is no true appeal, or that the BAT lacks the necessary jurisdiction for the intended appeal.

30.I do not think there is any need, for present purposes, to make extensive reference to the Buildings (Appeal) Regulation Cap 123L. But it can be noted that Regulation 3 provides for the notice of appeal, and Regulation 4 provides for the statement of particulars which the appellant is required to furnish to the Secretary to the BAT within 28 days beginning from the date of the notice of appeal. Regulation 4 identifies what particulars are to be furnished.

31.As stated, section 24 empowers the BA to make inter alia orders for demolition. But, section 46 of the 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.

32.I accept that the BA has the power to suspend or withdraw a building order by virtue of section 46 of the IGCO (though factually that is not what has occurred in this case).

F.  Ground 1: Right of Appeal

33.This intended ground is obviously the core point. Indeed, it seems to me to be likely determinative of the application for leave to apply for judicial review, as most of the other points of intended challenge flow from or depend upon it.

34.In my summary of the Applicant’s argument on Ground 1, as set out in the Form 86, the Applicant submits that:

(1)  Section 44 of the BO permits a person aggrieved by any decision made by the BA in the exercise of discretion conferred on him under the BO to appeal from that decision – where the Applicant places emphasis on the words “any decision”.

(2)  The BA had not looked into the feasibility and practicality of demolishing the UBWs before issuing the Building Order.

(3)  The Applicant had engaged an AP to submit a remedial proposal to execute the Building Order, but that was disapproved by the BA.

(4)  The Applicant found that demolition may cause collapse of the Property and neighbouring land, hence the suggestion to demolish the whole house instead of just the UBWs and reinstate as required by the Building Order.

(5)  The redevelopment plan was not approved by the BD.

(6)  Dealings with the LandsD to obtain necessary approvals take time over which the Applicant has no control.

(7)  Therefore the Applicant made the Exemption Application, to seek exemption from section 24(1)(a) to demolish the UBWs according to the Building Order until the redevelopment plans approved.

(8)  This was on the basis that, instead of following the Building Order exactly, the Applicant seeks to be exempted from that requirement and instead to diminish the whole building including all the UBWs and build a new building according to the redevelopment plan.

(9)  There is no challenge to the Building Order as the Applicant is not seeking to be exempted from demolition of the UBWs together.

(10)  The 20/11/2024 Letter refused to grant the exemption, without reasons.

(11)  The Applicant has provided the NoA within 21 days from the 20/11/2024 Letter, and the Applicant has the right to appeal.

35.However, with respect, those points are little more than (1) explaining why the Applicant thinks that the Exemption Application ought to have been accepted by the BA, and (2) making the assertion that the Applicant has the right to appeal when it was not accepted by the BA. Those points do not engage with the necessary core question – which was addressed by the BAT – as to whether the decision against which the Applicant intended to appeal was one made “in the exercise of a discretion conferred on [the BA] under [the BO]”.

36.I recently had cause to consider a similar question in my 25 March 2026 decision in Anthony John Steains v Appeal Tribunal (Buildings) [2026] HKCFI 1694. In that case, the applicant was the owner of a property on the Redhill Peninsula. He was served with a building order, from which he did not appeal. However, subsequently, the applicant proposed that compliance with the building order be stayed pending determination of appeals which had been made to the BAT by the owners of neighbouring properties. The BA refused the request for the stay. The applicant lodged a notice of appeal with the Secretary to the BAT seeking to appeal that refusal pursuant to section 44 of the BO. The applicant sought to emphasise that the subject matter of the appeal was the decision refusing the stay, as opposed to the building order itself. The BAT refused to process the appeal any further, on the basis that if the applicant had wished to appeal against the building order, notice of appeal ought to have been filed within 21 days, but that was not done, and to seek to launch an appeal in reliance upon the BA’s refusal to stay the building order was not an appropriate way to revisit issues that would have been dealt with if a notice of appeal had been launched against the building order.

37.I held that: (1) in refusing the request for a stay, the BA was merely requiring the applicant to comply with an undisputed and extant building order; (2) it was akin to a letter from the BA refusing a demolition and reinstatement proposal in response to a building order, which was also not a decision pursuant to section 24(1) of the BO nor an exercise of a discretion conferred on the BA under the BO; and (3) the refusal of a stay was not an independent exercise of discretion by the BA, but rather a further step in enforcement of the valid pre-existing building order.

38.I held that, 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.

39.I thought 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. 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.

40.It seems to me that the same reasoning is applicable to the circumstances of the present case. By its terms, the Exemption Application was in effect the Applicant asking the BA not to enforce the Building Order (or at least to stay or delay its enforcement). The BAT’s analysis of the position – which I have summarised above – is not reasonably arguably incorrect.

41.Indeed, it seems to me that the BAT’s analysis is correct. The Applicant’s Exemption Application unequivocally indicated that it was seeking exemption from compliance with the Building Order issued under section 24 of the BO. The 20/11/2024 Letter refusing to grant exemption from the Building Order is a continuation of enforcement action of the Building Order, for which the right of appeal has been time-barred. The BA was making clear from the terms of the 20/11/2024 Letter that it was dealing with the Exemption Application as part of its enforcement action for the Building Order. The decision to enforce is not a fresh exercise of discretion giving rise to any appealable decision.

42.Ground 1 is not reasonably arguable with any realistic prospect of success.

43.As I have already indicated, if it is not reasonably arguable that the BAT had jurisdiction to deal with the intended appeal – because it was seeking to appeal from a decision not made by the BA in the exercise of a discretion conferred on it by the BO – the other intended grounds of review are moot. Nevertheless, I will go on to consider them briefly.

G.  Ground 2: Fettering Discretion

44.Ground 2 seeks to rely on the potential interaction between section 24 of the BO and section 46 of the IGCO, as well as the power and discretion to make exemptions under section 42 of the BO. In the Form 86, the Applicant submits that the grant of exemptions is an exercise of discretion conferred on the BA under the BO, hence an appeal would lie from the refusal of the grant of exemption.

45.However, my analysis in relation to Ground 1 identifies that that is not reasonably arguable. It is not arguable to suggest that the BAT’s refusal of the appeal amounted to a failure to exercise its own discretion independently or as a fetter on its own discretion.

46.The additional points made under Ground 2 do not change the analysis. For example, there was no obligation to give reasons for refusing the exemption, or in effect refusing to stay or delay enforcement of the Building Order. Nor is it fertile ground for a public law challenge to complain that the BA failed to give proper recognition to and/or consideration of the Development Bureau’s General Circular No. 1/2024.

47.Ground 2 is not reasonably arguable with any realistic prospect of success.

H.  Ground 3: Misinterpretation and Errors of Law

48.The Applicant’s submission on Ground 3 begins by seeking to emphasise the separate nature of sections 14 and 24 of the BO. The Applicant submits that the BAT determined that the Building Order was issued on the basis of non-compliance with section 14, so that the Exemption Application was in substance requesting an exemption from section 14 itself. However, although it is not always difficult to follow, the argument seems to continue that:

(1)  The Building Order was made under section 24.

(2)  Section 24 is about demolition due to contravention of any of “the provisions” of the BO, referring only to the provisions as stated in section 2 of the BO – here material divergences deviation from any plan approved by the BA under the BO.

(3)  The power to issue the Building Order under section 24 does not refer to contravention of all other sections, for example section 14, because if it did it would just have said “contravention of any provisions”.

(4)  It makes no sense to contravention of anything under the sun where the relevant or not would result in demolition under section 24.

(5)  There is a consequence of contravention of each section clearly defined under section 40, where there is a difference between (a) failing to obtain approval or contravention of section 14 and (b) making a material deviation from approved plans.

(6)  Because section 14 is expressly excluded for possible exemption under section 42, all other sections including section 24 are not excluded and so can be exempted.

(7)  Hence the BAT erred in law to say that the BA has no discretionary power to make exemptions on section 24.

(8)  Because the intended appeal is not against the Building Order, the time bar for appealing from the Building Order is inapplicable.

(9)  Instead, the appeal is against the 20/11/2024 letter which rejected the application for exemption from immediate demolition and reinstatement, because there was a better and safer alternative solution under new circumstances.

49.With respect, if anything, those submissions simply emphasise that it was the Applicant’s desire to seek a stay or delay on the Building Order’s requirement of immediate demolition and reinstatement. Therefore, the BA’s refusal of that desire was simply to state that enforcement of the Building Order would continue. That was not the fresh exercise of a discretion, and it is not reasonably arguable that there has been any misinterpretation of the BO or any error of law arising from the BAT’s view as to the effect of sections 14, 24 and 42 of the BO.

50.Ground 3 is not reasonably arguable with any realistic prospect of success.

I.  Ground 4: Unreasonable and Irrational

51.Ground 4 is based upon the Applicant’s suggestion that it is irrational for the BA to use the lack of discretion as an excuse to reject the request for demolition of the whole house including all the UBWs and to rebuild a new house instead. It is suggested that it defies logic for the BA to ignore safety issues to insist on the demolition of just the UBWs, and it is unreasonable for the BA to insist on following the Building Order simply because the Applicant did not appeal against it within the stipulated 21-day appeal period.

52.There is absolutely no merit in this ground. The Building Order was made. There was no appeal from it, and time for any appeal expired in November 2017. There is nothing reasonably arguable in the suggestion that it is unreasonable or irrational for the BA to enforce the Building Order merely because the Applicant did not appeal from it in time. Indeed, on the contrary, it would be unreasonable or irrational for the BA to fail to enforce an extant and valid building order against which there has been no appeal.

53.Ground 4 is not reasonably arguable with any realistic prospect of success.

J.  Ground 5: Procedural Impropriety

54.Ground 5 is based on the suggestion that where sections 47 and 50 of the BO set out the process of filing of a notice of appeal and the determination of an appeal, and where the Regulations identify the service of the notice of appeal and what statement of particulars should be provided, then the BAT had no right to refuse the NoA or to provide a case number for the Applicant to submit its statement of particulars.

55.The Applicant then submits that, by coming up with its own process to determine the validity of the NoA instead of accepting it, the BAT has deviated from the statutory procedure laid out and has acted ultra vires. There is also the suggestion that the Chairman attempted to cut off and dismiss the Applicant within a short period at the hearing, which was improper and unfair because it deprives the Applicant of a fair chance to present its case fully before the BAT.

56.However, once it is recognised that the intended appeal from the 20/11/2024 Letter was an intended appeal from a decision which was not made in the necessary exercise of discretion as would give the BAT jurisdiction over the appeal, none of the complaints have merit.

57.Indeed, where the BAT in fact permitted the filing of two rounds of written submissions and then held a hearing to address the question of jurisdiction, it is not reasonably arguable that the Applicant was deprived of a fair opportunity of advancing its case as to why the BAT did have jurisdiction and should entertain a full appeal. Whatever approach was adopted by the BAT in this case shows that the Applicant has not arguably suffered any prejudice.

58.Ground 5 is not reasonably arguable with any realistic prospect of success.

K.  Result

59.Where the Applicant has failed to identify any intended ground of review which is reasonably arguable and which has a realistic prospect of success, the Applicant’s application for leave to apply for judicial review stands to be dismissed.

60.Therefore, I dismiss the application, with no order as to costs.

Bond Ng Solicitors, solicitors for the applicant