Cheong Ming Investment Co Ltd v. Attorney General
Read the full judgment text of HCA 250/1979 on BabelCite. This High Court CFI judgment was delivered on 6 July 1979.
1. It would appear that the plaintiff is a company engaged in land development. On the 28th September, 1978 it acquired from the Hong Kong Government the plot of land, to which I shall hereafter refer as the Plot, with which this case is concerned. The Plot as set out on the plan produced to me is bounded on the north by an intended road, on the east by an intended lane, on the south by an existing public road and the boundary on the west is a drainage reserve though that boundary is irrelevant
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HCA000250/1979
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----------------- Coram: Trainor, J. Date of Judgment: 6 July 1979 ----------------- JUDGMENT ----------------- 1. It would appear that the plaintiff is a company engaged in land development. On the 28th September, 1978 it acquired from the Hong Kong Government the plot of land, to which I shall hereafter refer as the Plot, with which this case is concerned. The Plot as set out on the plan produced to me is bounded on the north by an intended road, on the east by an intended lane, on the south by an existing public road and the boundary on the west is a drainage reserve though that boundary is irrelevant to these proceedings. 2. According to a statement of agreed facts the intended road to the north is to be 14.30 m. and the lane to the east is to be 4.45 m. The plaintiff is to be responsible for the construction of the road along the northern boundary as to half the width, and is to be responsible for the entire of the lane on the eastern boundary. The obligation to construct the road and lane is to be found in Special Condition 3 of the Conditions of Sale which, so far as it is relevant, reads:
The nature of the thoroughfares, if I may use that neutral term, surrounding the Plot is important but no point has been taken as to whether or not the road and lane are in existence as yet. 3. To the east of the lane there is an open space which has been "zoned" as a public open space. The thoroughfares contiguous to the Plot are important in that the extent to which the Plot may be developed depends on them. 4. The Buildings Ordinance, Cap. 123, was enacted to amend and consolidate the law relating to the construction of buildings. Section 14 of the Ordinance provides that no person shall commence or carry out any building works without having obtained from the Building Authority approval of prescribed documents and consent to commence the work. Section 16 provides that the Building Authority may refuse, inter alia, to give his authority where the plans are not such as are prescribed by regulations made pursuant to the Ordinance, where the carrying out of the building works shown on submitted plans would contravene the Ordinance or any other enactment or would contravene any approved or draft plan prepared under the Town Planning Ordinance. 5. Pursuant to powers in the Ordinance the Building (Planning) Regulations, to which I shall refer as the Regulations, were enacted. They provide that sites to be developed be classified into three classes. By regulation 2(1) the sites are classified as follows:
The practical importance of this classification is that the permitted percentage site coverage and plot ratio varies from class to class, with class C having the highest permitted percentage site coverage and plot ratio. From this it will be seen that the legislation enabled the Authority to control the development of sites, in particular as to the number or extent of buildings on a site and, as I hope shortly to demonstrate, the height and gross floor area. 6. The plaintiff's architect wrote to the Building Authority on the 28th October, 1978 asking to be advised as to the classification of the Plot. To that the Authority replied that it was class A. On the 2nd December, 1978 the plaintiff's solicitors wrote to the Authority disagreeing with the classification and maintained that it was a class C site. On the 18th December, 1978 the Authority replied to the effect that as the lane to the east of the Plot is only 4.45 m. the Plot must be considered as class A. In subsequent correspondence issue was joined between the parties and, as will be seen later, it revolves around .05 m. in the width of the lane. To be more precise the issue revolved around section 2 of the Ordinance and regulations 2, 19, 20, 21, 22 and 23 of the Regulations, and in particular the effect of regulation 23(1)(c). As will appear, that 0.05 m. was not fortuitous. 7. The plaintiff now seeks a declaration that the Plot constitutes a class C site; a declaration that a notice of disapproval of building plans issued by the Building Authority was incorrect, null and void in so far as it is alleged that the Plot is not a class C site and other consequential relief. 8. As I have shown earlier a site is classified by the number of streets on to which it abuts. In section 2 of the Ordinance it is stated:
In regulation 2 of the Regulations it is stated:
Regulation 16(1) provides:
Regulation 16(2) and (3) then proceeds to establish a formula as to how the street shadow area shall be ascertained. One of the factors in the formula is the width of the street. Regulation 16(4) provides, inter alia:
If I may pause there for a moment it is clear that the word "street" must mean street as defined by the Ordinance but limited to one of a width of at least 4.5 m. It is equally clear that it is only for the purpose of regulation 16(1), (2) and (3), the mathematics of determining the height, that there is a qualification of the definition. 9. Regulation 19 provides:
10. I have found it impossible to understand ".... the height of the building on that site or of that building". The only rational interpretation of the regulation that I can see is that the regulation intended to provide how the height, inter alia, is to be determined when regulation 16 does not apply. 11. Thus height is determined in one of two ways: according to the formula set out in regulation 16 if the building abuts, fronts or projects over a street, and that must mean a street as defined, but if that street is less than 4.5 m. wide the Building Authority determines the height. 12. Regulation 20 prescribes the permitted coverage of classes A, B and C sites and regulation 21 prescribes the plot ratio; in both regulations a coverage or ratio not exceeding what is specified in the First Schedule to the Regulations. 13. Regulation 22 provides that in certain cases the site coverage and the plot ratio may be exceeded. 14. Regulation 23(1)(a) provides, for the purposes of regulations 19, 20, 21 and 22(a), from where the height of a building shall be measured, and regulation 23(1)(b) how the gross floor area shall be ascertained. Regulation 23(1)(c) reads:
And it is on the effect of that last paragraph of the sub-regulation on site classification that issue is joined. The plaintiff maintains that the Plot is a corner site abutting on three streets, as street is defined, and therefore a class C site, while the defendant maintains that by reason of regulation 23(1)(c) the lane, being only 4.45 m., is to be deemed as not existing as a street for the purpose of site classification and therefore the Plot must be classified as a class A site. It is conceded by the defendant that it would be otherwise if the lane were 4.5 m. 15. Mr. Widdicombe leading counsel for the plaintiff put forward the plaintiff's case on two grounds:
and therefore the Plot is a class C site. 16. I do not intend to dwell on the very helpful argument of Mr. Widdicombe. In a nutshell it is that a street is defined and where a site abuts on to a street or streets as defined its classification is fixed; that regulation 23(1)(c) does not and was not intended to, even if it were legally possible so to do, affect the definition of street and thereby affect the site classification. 17. The case for the Crown may be discerned from a reply from the Building Authority to a letter from the plaintiff's solicitors. It was the last of the correspondence before proceedings were commenced. The relevant part of the letter reads:
18. Regulation 20(1) commences:
Paragraphs (b) and (c) provide in identical language for class B and class C sites. 19. Regulations 19A is so far as this judgment is concerned irrelevant. Regulation 20(2) commences in terms almost identical to those in 20(1):
And then proceeds to provide for the site coverage for a non-domestic building, or for the non-domestic part of a composite building on class A, B and C sites. 20. Two things to be noted are that firstly there is nothing in the regulation to suggest that the classification of sites differs in any way from the classification in regulation 2, and secondly that site coverage depends on the height of the building, and the latter is important. 21. Paragraph (3) makes provision for the site coverage for a non-domestic building, or for the non-domestic part of a composite building being exceeded "whatever the height of the building". 22. Regulation 21 commences:
and then proceeds to set out the plot ratio for domestic buildings on class A, B and C sites. Again it will be seen that height controls plot ratio. 23. Regulation 22, as I said earlier, permits the site coverage and plot ratio to be exceeded in certain circumstances and it will be remembered that site coverage and plot ratio depend on the height of the building. 24. It will be seen from the quotations from the various regulations that they are involved with measurements; 19, 20, 21 and 22 are concerned with the height of the building which leads to the determination of site coverage and plot ratio. 25. But one has to go back to regulation 16 to find out the basis of ascertaining the height: it is by reference to "the street shadow area". The formula provided for the calculation of the street shadow area is the "frontage" multiplied by the width of the street divided by 2, "F x W"/2. As can be seen the width of the street is an essential factor, and the regulation stipulates that for the purpose of that formula street means a street or service lane of at least 4.5 m. wide. 26. Regulation 23(1) reads:
Thus in regulation 16 the method of determining the height is prescribed and regulation 23(1) lays down "For the purposes of regulations 19, 20, 21 and 22" from where the measurements are to be made. If regulation 23(1) said nothing more than "street or streets" those words would have the meaning given to them in the Ordinance, but paragraph (c) continues (still subject to the opening words):
Does that affect regulation 19? 27. Regulation 19 enables the Building Authority in the circumstances there set out arbitrarily to determine the height of the building. Were (c) omitted from regulation 23(1) and the circumstances set out in regulation 19 existed, there would result the ambiguity of the Building Authority on the one hand being authorized to determine the height and, on the other, directed in 23(1) that the measurement of the height should be made from the level of the street on which the site abuts. Any possibility of such an ambiguity is removed by the addition of (c). It emphasizes that regulation 19 is not affected by regulation 23(1)(c). It is an ineptly drafted regulation so far as regulation 19 is concerned but there is no doubt as to what was intended. 28. As I have endeavoured to show and emphasize, the permitted site coverage (regulation 20) and the plot ratio (regulation 21) depend on the height of the building and height is determined by reference to regulations 16 and 23. For the purpose of regulation 16 the street shadow area which determines the height of a building is based on a calculation one factor of which is the width of a street or service lane of "at least 4.5 m. wide". If regulation 23 used "street" without any qualification then, once more, the ambiguity would arise if the building or the site fronted or abutted a street or service lane which was less than 4.5 m., a regulation 19 situation. The method of determining the height (regulation 16) would preclude the width of the street or lane as a factor, but the height would be measured from the mean level or levels of such a street or streets according to regulation 23(1). 29. Regulation 23(1) is meant to provide, together with regulation 16, for the ascertainment of the height of a building, and as a result the site coverage and the plot ratio is determined, but by 23(1)(c) it is made clear that regulation 19 remains unaffected. Regulations 20, 21 and 22 make provision for site coverage and plot ratio when the relevant street or lane is at least 4.5 m., a non-regulation 19 situation. 30. From what I have said above it follows that "street" where it appears in the regulations to which I have referred bears the meaning attributed to it in the Ordinance. For example where it appears in regulation 16 it has the same meaning as in the Ordinance, but for the purpose of that regulation its application, but not its meaning, is qualified; similarly in regulation 19. 31. Section 23 does nothing to affect the meaning of street; all it does is to provide a place or point in a street or streets from which the height of a building will be measured provided, and I take the point Mr. Widdicombe made by his quotation from 36 Halsbury (3rd Edition) 604, the street is at least 4.5 m. 32. The regulations to which I have referred are to be found in Part III of the Regulations and I think some assistance may be derived from the headnote: "Heights, Site Coverage, Plot Ratio, Open Space and Lanes". It is with those matters, and in particular the first three so far as this case is concerned, that that part of the Regulations deals. Regulations 20 and 21 are only concerned with site coverage and plot ratio of the three classes of sites, for the ascertainment of which the height of a building is all important. Regulation 23(1) provides for the purposes of regulations 20 and 21 the focal point from which the measurement is made. 33. In my opinion it is manifestly clear that it was never the intention of regulation 23(1) in any way to interfere with meaning of "street" attributed to it in the Ordinance. To commence with I cannot easily visualise a case where subsidiary legislation might change a part of a section in an Ordinance, and certainly not in the present case. In regulation 2(1) of the Regulations it is provided:
I question the validity of that if it purports to assume authority to give words in the Regulations a different meaning to that specifically attributed to them in the Ordinance. But nowhere in the regulation under consideration has a meaning different to that in the Ordinance been attributed to "street" in any context. For certain specific purposes a "street" of minimum width has been referred to but only for those purposes and a "street" remains a "street". From nowhere in the context of regulations 19, 20, 21 or 22 is there anything which suggests that a class A, B or C site means anything other than such sites as defined in the Regulations. The focal point from which a building on that site is measured in no way changes the context. 34. Where therefore there is a reference to a class A, B or C site in regulations 20, 21 or 22 it means a site as classified in the Regulations, and "street" in the Regulations means any street, as defined in the Ordinance but for specific purposes, pertaining to measuring only, a street of a minimum width is concerned. 35. The result of what I have said is that where the relevant street is less than 4.5 m. the Building Authority determines the height of the building, the site coverage and the plot ratio (regulation 19); in all other cases the height is determined according to regulations 16 and 23 and the site coverage and plot ratio according to regulations 20 and 21 respectively. Where the conditions set out in regulation 22 prevail the height, site coverage and plot ratio are determined on the same principles. 36. In the circumstances the plaintiff is entitled to the declarations sought and costs with certificate for two counsel. 37. Having decided as I have, I do not consider it necessary to express an opinion on the second ground argued by Mr. Widdicombe. In the course of the argument I was shown a minute of a Public Works Department Conference where it was decided that the policy that prevailed until then, that open spaces be considered as "street", be no longer so considered. Without expressing an opinion as to whether an open space is a street or not may I say by way of a warning that no policy decision, however high the policy maker or body may be, may alter in any way existing legislation; only legislation may alter legislation.
Representation: Mr. David Widdicombe Q.C. & Mr. Kemal Bokhary (Woo, Kwan, Lee & Lo) for plaintiff. Mr. Peter Graham, C.C. for Defendant. |