Ng, Wilson Ching Hung and Another v. Wong Yuk-kuen Florence and Others

LDBM000392/1999

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 392 of 1999

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Coram: Deputy Judge LEE

Dates of Hearing: 11th April 2000 & 21st February 2001

Date of Judgment: 27 February 2001

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J U D G M E N T

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1. The applicants have been the registered owners of Flat 3, 24th floor, Belle House, 31 Whitfield Road, Hong Kong, since January 1997.

2. The 1st to 16th respondents are sixteen of the registered owners of Belle House.

3. There is a Deed of Mutual Covenant, dated 4th October 1977, in relation to Belle House (the DMC).

4. The applicants applied for an order that the respondents should remove the water meters on the roof portion of Flat 3, 24th floor of Belle House, or that the respondents should pay a monthly rental for the occupation of the applicants' premises.

It is not in dispute that:-

Belle House was erected in 1977.

The water meters were installed in 1977.

Pipes leading to and from the meters into the various premises of the 1st to 16th respondents run over and across the roof portion of the applicants' premises.

The applicants caused a raised platform to be erected over the pipes and the meters, with removable panels, to facilitate their use of the roof area. The panels enable the Water Authority to take readings of the meters.

The applicants have to make special arrangements with the Water Authority for access.

5. The applicants referred to clause 5 of the DMC which stated that :-

"the owner or owners for the time being of the flats on the Top Floor of the said building shall be entitled to the exclusive use occupations & enjoyment of the corresponding part of the Roof thereof"

6. The applicants contend that the respondents are in breach of this clause in DMC, as the water meters interfere with the applicant's exclusive use, occupation & enjoyment of the roof.

7. The applicants have to arrange for access to the meters by appointment with the Water Authority, to facilitate meter reading.

8. The applicants further argued that the applicants had never given any consent or approval for the siting of the meters, and that the applicants' predecessor-in-title had never given such consent or approval.

9. RW1 Mr. Tam Yun Sang of the Water Authority, produced the vertical plumbing line diagram, approved by the Water Authority in July 1977. His evidence was that, it showed that water meters were installed on the roof of Belle House, with the approval of the Water Authority. There was no horizontal layout plan showing the exact location of the meters on the roof.

10. RW1 referred to R.27 of the Water Works Regulation under Water Works Ordinance Cap. 102, which provided under R.27(1) that "the siting of a meter shall be determined by the Water Authority" and that he may install the meter at a point most convenient to him on any wall (internally or externally) of a building in which there is a fire service or inside service.

"R.27

(2) If access to a meter by Water Authority is persistently obstructed or denied, the Water Authority may, after consulting the consumer, by notice in writing served on the consumer determine another siting of the meter on any wall (internally or externally) of the building.

(3) If another siting is so determined, consumer shall at his own cost, cause such works to be carried out as will enable the Water Authority to install a meter at the other site..."

11. According to the records of Water Authority there has been no alterative siting of the water meters.

12. The only inference which could be drawn is that the existing sites of the meters have always been as determined by Water Authority, ever since the building was erected.

13. From the DMC, it could be seen that the 1st owner of the applicants' premises was Yen Fai Development Co. Ltd.

14. The respondents' evidence was that the 1st owner under the DMC was the developer of the property. This was not rebutted or disputed by the applicants.

15. Since the 1st owner was the developer, the building plans & utilities installation plans, including that of the plumbing & siting of meters, must, by inference, be drawn up with the consent and approval of the 1st owner, the developer, the applicants' predecessor-in-title.

16. I find as a fact, from the evidence that there was consent and approval from the original 1st owner, the developer, to the siting of the water meters on the roof.

17. The applicants take their title subject to much consent & approval.

18. The application is dismissed.

19. Costs to the respondents to be taxed if not agreed.

Representation:

Mr. Alex Lok, Counsel instructed by M/S Weir Associates for the 1st & 2nd applicants, in person.

Mr. LEUNG Hin-yuen, the representative for the 1st to 16th respondents, in person..