Re Minos Estate Ltd
Read the full judgment text of HCMP 1417/1981 on BabelCite. This High Court CFI judgment was delivered on 22 June 1982.
1. On the 27th October, 1981, leave was granted to the applicant to apply for judicial review of an order made by the Building Authority on the 15th September, 1981 requiring the demolition of two structures known as the "Viking Villas" on and the reinstatement of the excavated slope in Lots Nos.422, 423, 424A and 424 R.P., Demarcation Distried No.36 to the satisfaction of the Building Authority. This Building Authority's order dated the 15th September, 1981 was served under Section 24A of the B
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HCMP001417/1981
______________________ Coram: Hon. Liu, Barnes and Kempster, JJ. in the Full Beach. Date: 22 June 1982 ___________ JUDGMENT ___________ Liu, J. : 1. On the 27th October, 1981, leave was granted to the applicant to apply for judicial review of an order made by the Building Authority on the 15th September, 1981 requiring the demolition of two structures known as the "Viking Villas" on and the reinstatement of the excavated slope in Lots Nos.422, 423, 424A and 424 R.P., Demarcation Distried No.36 to the satisfaction of the Building Authority. This Building Authority's order dated the 15th September, 1981 was served under Section 24A of the Buildings Ordinance Cap.123 on the ground that the building works would cause or would be likely to cause risk of injury to life or damage to property. 2. On the 11th November, 1981, the Building Authority caused to be served upon the applicant two further orders for like demolition under Section 24 and Section 26 of the Buildings Ordinance respectively. As for these two Sections, it is to be noted that remedial powers are conferred on the Building Authority in respect to building works carried out in contravention of any of the provisions of the Buildings Ordinance under Section 24 and in respect to any dangerous building or building liable to become dangerous under Section 26. 3. Pursuant to leave granted on the 27th October, 1981, the applicant's application for judicial review was in fact scheduled to be heard on the 12th November, 1981, the next day after the seryice by the Building Authority of his said two further orders. At the hearing on the 12th November, 1981, leave was granted to the applicant to apply also for judicial review of these two further orders issued the day before, and thereupon by consent a preliminary issue was ordered to be determined by a Full Bench in the following terms :
4. On the main preliminary issue, counsel for the applicant submitted that the language of Regulation 3(2)(b) in the current Buildings Ordinance (Application to the New Territories) Regulations made by the Governor in Council under the Buildings Ordinance (Application to the New Territories) Ordinance Cap. 322 was equivocal in its application to the two pairs of semi-detached houses "Viking Villas" erected by the applicant. It was urged upon us that for the proper construction of these regulations, the Court might be guided by extraneous matters such as past legislative history including Explanatory Notes to Bills and a Now Territories Administration Advisory Circular. This Advisory Circular No.101 dated the 14th August, 1975 was published by the New Territories Administration to related Government departments, I.C.A.C. and the profession after the coming into force of the current Regulations in 1967. 5. Mr. Swaine submitted that the legislative history, the Explanatory Notes and the Advisory Circular had brought into focus the consistent policy for exempting small dwelling houses erected by villagers in the New Territories. Counsel analysed the historical background thus : Before 1960, the only control over building construction in the New Territories was to be found in the lease conditions of Block Crown Leases and any new grants. By section 1(2)(b) of Ordinance 68 of 1955 which was the then Buildings Ordinance, 1955, the Governor in Council was empowered to apply its provisions to the New Territories. No order of this nature was ever attempted. Under Ordinance 27 of 1960 which came to be known as the Buildings Ordinance, 1955 (Application to the New Territories) Ordinance 1960, some of the provisions of the Buildings Ordinance 1955 were extended by its section 4 to the New Territories save for such "village-type houses" or "permitted buildings" as the Building Authority might at his discretion exempt. A "village-type house" was to be determined by the District Commissioner and a "permitted building" was defined in that 1960 current 1967 Regulations had given rise to manifest ambiguity. Hence, counsel invited the Court to peruse and consider the aforesaid extraneous matters. It was pressed upon us that since these 1967 Regulations were intended to enlarge but not to abrogate exemption, despite the variation in terms all dwelling houses within the prescribed dimensions must remain exempt as a domestic building. 6. Evidently, there can be no equivocal language for interpretation unless the word "building" can reasonably convey other meanings than those specified. The statutory importation of an extended or technical meaning to a word, though perhaps a distortion of the English language, would not per se create any lack of clarity. 7. Mr. Swaine did not seek to cast doubt on the meaning of the word "building" or of any of the terms viz. "the whole of any domestic building" and "any part of any domestic building". But counsel maintained that the inclusion of "any part of any domestic building" in the meaning of the word "building" had introduced a measure of obscurity. 8. As for the word "building", its natural and ordinary meaning is beyond dispute, as is indeed the meaning of any of the terms "the whole of any domestic building" and "any part of any domestic building". That word by itself or with reference to those terms cannot be more clearly expressed; none of them is reasonably capable of carrying two or more meanings. 9. Indeed, by the inclusion of two or more classes or sub-classes, a definition would not become obscure so long as each class or sub-class does not admit of more than one interpretation. I am driven to the conclusion that the meaning which the word "building" ought to bear is reasonably plain as is the meaning of the term "the whole of any domestic building" or "any part of any domestic building" in the extended definition of "building". Thus, in my view extraneous matters cannot be called in aid of construction. 10. We need not really be concerned here with "a part of a domestic building". It must have been intended by the Legislature that a building has to fall, in its entirety, within such small measurements to qualify for exemption. Regulation 3(2)(b) of the 1967 Regulations has, in its own context, no room for anything less than the whole of a building. To all intents and purposes, a building is either exempt or it is not. It would be absurd to claim a Regulation 3(2)(b) exemption for any integral part of a building e.g. for one of its columns or beams, although any part of a building is within the definition of the word "building". 11. I have, I hope, sufficiently demonstrated that the definition of "building" suffers from no obscurity and that the term "the whole of any domestic building" also admits of no ambiguity. Therefore, they are only to be expounded in their natural and ordinary sense without recourse to any extraneous considerations. Regulation 3(2)(b) excludes all small dimensions buildings in the New Territories. If it be criticized that a widely spread complex structure containing countless small independent domestic "buildings" would likely provide an escape from Governmontal control, one need only refer to Regulation 3(2)(c), which does not even seek to impose any restriction on the built-up area of a New Territories low agricultural building. 12. It cannot be seriously doubted that each of the pair of the semi-detached houses falls within the natural and ordinary meaning of a "building" or "the whole of a domestic building" once it is accepted as the correct test in its appearance and usage. When the pair of semi-detached houses are examined both externally and internally, each house is independent in design and purpose, though sharing a common foundation, a common dividing wall and a common roof. Whether the common partition wall is constructed in compliance with Table XI in Regulation 52 of the Building (Construction) Regulations is immaterial and irrelevant. The common partition wall, for all its suggested faults, is not illusory, and if indeed these semi-detached houses should become exempt, Table XI could have no application. The definition of "semi-detached building" in the Building (Planning) Regulations made under the Buildings Ordinance Cap. 123, though otherwise unrelated, does reflect the significance of a structural separation : "semi-detached building means any one of a pair of buildings connected to each other by a party wall and has ..." Each of the semi-detached houses in the pair here is a self-contained dwelling wholly independent of the other. In my view, each in the pair of semi-detached houses is a building within the meaning of the 1967 Regulations. 13. It is therefore quite unnecessary for me to rule on the nature and scope of permissible extraneous materials to which the Court may have regard for resolving an ambiguity, otherwise I would have considered myself guided by R. v. Cheung Chung Wai.(1) 14. I turn next to consider the baseline from which the height of a building is to be measured. "Height" in relation to a building is defined as "the height measured to the highest part of the building or, in the case of a building which is roofed, to the level of the apex in the case of a pitched roof or to the level of the main roof in the case of a flat roof". The reference to "the highest part of the building" presupposes the existence of the lowest part of it. We are dealing with the height of a building, which is clearly distinguishable from the permissible building height as envisaged by the Building (Planning) Regulations. The question is not how far up from the site may a building reach. The area of an exempted building is to be less than 65.03 square metres, and it would not be practicable or feasible to erect a humble structure such as this on top of a highrise foundation. Elevation from the site level is evidently not the concern of this sub-regnlation. Regulation 3(2)(b) of the 1967 Regulations refers to a building, which "does not exceed 7.62 m. in height". A foundation the design and construction of which are governed by the Building (Construction) Regulations may arguably be brought under the umbrella of the extensive definition of "building" in the Buildings Ordinance Cap. 123, but in my view Regulation 3(2)(b) of these 1976 Regulations should not be read, in its proper context, to incorporate any part of its foundation, otherwise hardly any small dimensions building may lawfully be erected thereunder on a steep slope in the New Territories. Measurement must therefore be taken from one part to another of the building itself as it is commonly understood, i.e. from top to bottom and not beyond. When there are more than one pitched roofs, the level of the highest apex must be, in my view, taken to reflect the realistic height of the building. Naturally, when there is a pitched roof, even for decorative purpose, it must be measured to the level of its apex from the bottom of the ground floor slab. The position of the manhole for drainage has justifiably aroused suspicion, but for our present discussion that is in or inside the foundation beneath the building. 15. Finally, I come to the term "roofed over area" with reference to the building. In my view, the answer is obvious. A structure cannot be roofed over unless it has a roof. The Crown conceded that the lower balcony was not roofed over by the upper balcony. It is sheltered or covered by the balcony above but not roofed over by it. The upper balcony is not a roof, and if ever it could be taken as a roof, it would certainly not be accepted as a roof for the lower balcony in the ordinary sense. The rhetorical question to be asked is : "Does any of the balconies have a roof?". The answer must be in the firm negative. The roof is the roof of the twin buildings and not that of the balconies. The overhang provides shelter but does not serve the upper balcony as a roof. It does not even improve facilities for the lower balcony. It was also the consensus that a structure in the form of a canopy overhanging any of the balconies would not "roof" over it. When none of the balconies has a roof, it simply cannot be roofed over. 16. Conversely, it may be argued that since a building by statutory definition would include part of a building, i.e. the balconies and since the building has a roof, it must also be a roof for the balconies. What would immediately leap to mind is the need for justifying the exclusion of this roof from the lower balcony. On this approach, one would encounter no less than three difficulties : First, looking at the existing roof functionally, it merely serves the area bounded by the four walls as a roof. Its function as a roof does not extend to the balconies, less so to the lower balcony. Further, the introduction of a large enough canopy between the upper balcony and the overhang would bring about more uncertainty to the proper measurement of the roofed over area. Secondly, it was certainly not designed as a roof for the balconies. It sits on the uppermost of the external walls but is some distance above the balconies. A balcony is universally understood to be constructed for the enjoyment of light and air, and the provision of a roof is hardly conducive to these desired attributes. It would seem that in this case the purpose and the utility of the existing roof have not converted it into a roof also for the balconies. Thirdly, a roof is defined in the Concise Oxford Dictionary as "upper covering of house or building or room usually supported by its walls". Quite obviously, "house", "building" or "room" is there to be read in its ordinary sense. The natural and ordinary meaning of a roof thus ignores any structural shelter provided by its overhang. 17. In conclusion, I prefer the former and more effortless approach. 18. I would decide the sub-issues specifically as follows :
19. It was pointed out by Mr. Swaine that a finding in favour of the Crown in any of the sub-issues would preclude the two pairs of semi-detached houses from being exempted. I have in substance found against the applicant on sub-issues (ii) and (iii). Thus, my answer to the main preliminary issue is "No". I would reserve costs for the consideration of the Full Bench at the hearing of the application for judicial review.
Barnes, J. : 20. The Buildings Ordinance ("the principal Ordinance") provides for, inter alia, "the planning, design and construction of buildings and associated works". By section 1(2) it applies to the New Territories "in the manner provided by the Buildings Ordinance (Application to New Territories) Ordinance" ("the New Territories Ordinance"). Section 2(1) provides :-
21. Section 2 of the New Territories Ordinance provides that any word which has a meaning assigned to it by section 2 of the principal Ordinance is to have the same meaning assigned to it under the New Territories Ordinance. By section 4 of the New Territories Ordinance the Governor in Council is empowered to make regulations excluding the application of the principal Ordinance to building works for the erection of specified buildings in the New Territories. 22. Regulation 3 of the Buildings Ordinance (Application to the New Territories) Regulations, the regulations made pursuant to that power, ("the regulations") provides as follows :
23. Is the term "building" in regulation 3(2) to be construed in the extended sense assigned by the principal Ordinance so that it refers, not only to a building in the ordinary sense but to "any part of any domestic or public building" as well? 24. It does not follow, as a matter of construction, that because a term is extensively defined it is to be given its extended meaning wherever it appears. The effect of an extensive definition is two-fold. It retains the ordinary meaning for use when that is applicable and extends the meaning to enable the term to be applied to some things to which it would not ordinarily be applicable when the context does not become nonsense with that extension(1). 25. Regulation 3 makes sense if the ordinary meaning is applied but becomes nonsense once the extended meaning taking in "any part of a building" is applied in a context of prescribed areas and dimensions. Every building can be notionally divided into a number of parts so that each part occupies or measures less than the prescribed area or dimensions. With every part exempt the whole of every building would also be exempt. That result is so absurd that one must say that the context of prescribed areas and dimensions requires that the term "building" be construed in its ordinary and not in its extended sense - at least, not in the extended sense which takes in "any part of a building". 26. With the term used in its ordinary sense the regulations can be construed meaningfully and consistently with the legislative intent. There is therefore no need to seek the assistance of "extraneous aids" in interpreting them. 27. In this case, my answer to sub-issue (i) is that, as "each pair of semi-detached houses" appears to me to be a building in the ordinary sense, or "the whole of a building" in the extended sense, "each pair" forms one building within the meaning of regulation 3(2). 28. Under the regulations the term "height", when used in relation to a building, means :
The question asked on the next sub-issue is : where is the measurement to be taken from? 29. The building in question here is being erected on a slope. Regulation 23 of the Building (Planning) Regulations ("the Planning Regulations") made pursuant to the principal Ordinance provides that the height of a building is to be measured from the mean level of the street on which it fronts or abuts. It was argued that that provision gives a clue to the baseline from which height measurements should be made of buildings erected on a site which is not level ground. The regulation itself, however, specifically limits its application to height measurements made for the purposes of four of the Planning Regulations. Those four regulations are mainly concerned with the concepts of "site coverage" and "plot ratio". As the "mean measurement" approach has been introduced in the Planning Regulations for that limited purpose I think that, if the regulation contains any hint at all about measuring the heights of buildings, it is that that procedure is a departure from the norm. 30. What then is the norm? I think it must be the ordinary way by which heights are measured. If I were asked to measure the height of the Hongkong Hilton, I would not take my tape measure to Carden Road. Measuring from any point in Garden Road would not give me the height of the Hilton as a building. To obtain that measurement I would need to find the lowest point at which the hotel meets the ground, place the "zero" end of my tape measure on the ground at that point and then measure upwards. Similarly, if asked to measure the height of a golfer playing a shot from a bunker, I would put the end of the tape next to the shoe in the sand and ignore the other shoe no matter how firmly it might be planted on the bunker's lip. The mean level of the slope between his two feet might be a useful starting point from which to measure the length of his shadow or the arc of his swing but it would not be the usual starting point from which to measure the height of the man. Thus, it seems to me that the height is to be taken from the lowest point at which the building meets the ground when the building works are completed. 31. The plan suggests that that will be the ground floor slab because all underneath it will be earth when the works are completed. It was pointed out, however, by Kempstor, J., during argument that the plan does not follow the contours of the land. Although there may be earth filling below the ground floor slab when the building works are completed, that filling will have to be kept in place by some form of retaining wall. If that is so then when the building works have been completed the lowest point of the building at ground level will be where one of the stilts or part of that retaining wall meets the ground. In that event, on my interpretation, the height of the building will have to be measured from that point. 32. The definition of "height" in the regulations leaves no doubt in my mind about the level at the upper end of the measurement. That point is the level of the apex of the pitched roof above the pump room. 33. The expression "roofed over area" in sub-regulation 2 of regulation 3 is not defined. The expression must, therefore, convey nothing more than the simple notion of the covered area of the building. Sometimes that is the area contained within the four outermost walls of a building, where, for example, there is no part of the building, other than part of the roof itself, outside those four walls. But a building with a verandah or a balcony has an area which extends beyond the four walls. If that balcony or verandah is permanently covered by another part of the structure, whether that part be the roof of the building itself or merely the floor of the balcony on the next floor up, it cannot be said to be other than an area of the building covered by a roof. The ceiling of my living room does not cease to be a ceiling simply because my neighbour upstairs refers to it as a floor. Any part of the structure which is permanently covered by another part of the structure must, in my view, be part of the roofed over area of the building. That area is easily calculated. It is simply the area within the four walls plus, in this case, the area of the largest covered balcony. 34. In the result I find against the applicant on all the sub-issues. I must, therefore, find against the applicant on the preliminary issue.
Kempster, J. 35. The Applicants in these proceedings, Minos Estate Ltd., seek the judicial review of:
36. As regards the Notice dated the 15th of September 1981 leave to apply for judicial review was granted on the 27th of October 1981. As regards the Notices dated the 11th of November 1981 leave was granted on the 12th of November of that year with the consent of the parties as was an order that a preliminary issue should be determined by the Full Bench. That issue, which as will appear is germane only to the Notice dated the 11th of November 1981 which invoked section 24(1) of the principal Ordinance, was defined as follows:
37. If sections 14 and 24(1) do not apply the Notice in question is a nullity and this Court will be able to exercise its discretion so to declare pursuant to Order 53 rule 1(2) of the Rules of the Supreme Court. If, however, section 24(1) does apply the Notice in question, like the other two notices, is prima facie valid and all three will be the subject of further argument and determination by counsel and the Full Bench respectively. The Applicants accept that the burden of proof rests on them. 38. The building works in question constitute the main structure of four dwellings called "Viking Villas" which stand on a stilt-supported platform abutting on a partially levelled hillside which slopes some 30° to the horizontal. The dwellings are semi-detached in two pairs and extend to three storeys. The front of the roof is flat and available for use by the occupants. In the middle, over the stairs and pump-room, rises a taller roof which is tiled as is the less steeply pitched roof above the rear bedrooms. There are balconies on the first and second floors. 39. The Applicants have undertaken to the Court to fill-in and consolidate the area encompassed by the stilts and lying below the platform if allowed to proceed with the project. Having regard both to the form and terms of the plan which they submitted to the Tai Po New Territories District Office and which was returned to them on or about the 25th of June 1979 and to a photograph before us showing a manhole in the made-up slope beneath the stilts I am inclined to the view that such undertaking in no way reflected a long-held intention. But this is by the way. 40. The Buildings Ordinance (Application to the New Territories), Cap. 322 is expressed
Section 2 provides
The material parts of the Regulations, as amended, which first became effective on the 1st of July 1967, are:-
Sub-paragraphs (c) and (d) give the height restrictions on buildings used solely for agricultural purposes or built as schools in compliance with plans. 41. In seeking so to construe this legislation as to give effect to its object and intention as required by section 19 of the Interpretation Ordinance, Cap. 1 recourse may be had to all permissible aids. But the Court cannot overlook the cardinal rule that ordinances and regulations should be construed according to the intention therein expressed and that if the meaning is plain the consequences must be disregarded. If, however, the meaning is obscure the Court may look to related ordinances or regulations as the case may be in order to ascertain the mischief for which the existing law had failed to provide and the legislative intention. I have already referred to the expressed purpose of Cap. 322 and, fortified both by the speech of Lord Simon in Ealing London Borough Council v. Race Relations Board(1) and by the judgment of the Hong Kong Court of Appeal in Regina v. Ching Chung Wai(2) would, if and where the meaning of the legislation were obscure, take into account the explanatory memorandum accompanying the 1967 Regulations when first they were published insofar as it assisted in ascertaining their intent. The explanatory note reads:
What the note does not state, because, I believe, it was more than obvious, is that the overriding intention of the legislature was to further the safety of the public in the New Territories. 42. The Court is not entitled to look to explanatory notes or advisory circulars issued by Government departments as an aid to construction. London County Council v. Central Land Board(3). 43. The first of four sub-issues, some of which are divided into sub-sub issues, which, with scant prospect of unanimity, we are also required to determine "for the purpose of determining the said preliminary issue" reads:-
If each pair of semi-detached houses does constitute one building "Viking Villas" are subject to the material provisions of the Buildings Ordinance. 44. Section 2(1) of that Ordinance defines "building" in terms earlier found in Ordinance No. 68 of 1966. I quote:-
This does not mean, in my view, that a building may, without more ado, be held to comprise a whole series of other buildings in the sense that each room or component of that building is itself a building. Such a concept is repugnant to common sense. 45. The Applicants did not seek to pray in aid the definition of "semi-detached building" to be found in Regulation 2(1) of the Building (Planning) Regulations because, I assume (and I have taken certain measurements from the plans) of the inadequacy of the open space between the pairs of dwellings. What Mr. Swaine did rely upon, the definition which I have just quoted apart, was the history of the relevant legislation which is set out in paragraphs 6-13 inclusive of the affirmation made by Mr. Wilburn on the 22nd of January 1982 and the purport of the current regulations as summarised in the explanatory note already referred to. The terms of Ordinance No. 27 of 1960, which became law on the 29th of June of that year, demonstrated an intention to allow the Building Authority a discretion to exempt "village-type houses" from the controls of the Principal Ordinance and its subsidiary legislation though, as from the 9th of December, by reason of Amending Ordinance No. 56 of 1960, the expression "village-type houses" was superseded by the all embracing term "building". The 1960 Regulations (as unamended) exempted both small dwelling houses and small buildings used solely for agricultural purposes. In the light of this history and of the explanatory note it is submitted that the legislature cannot have intended by the 1967 Regulations which revoked the 1960 Regulations and, for the first time, did not expressly exempt houses as such, to subject "village-type houses" whether detached, semi-detached or terraced - and a terrace could embrace a great many dwellings to control. But this is not a situation where, to quote part of the speech of Lord Macnaghten in Commissioners for Income Tax v. Pemsel(4).
The wording has changed and is clear and unambiguous. It would prevail over the explanatory note and legislative history even if it were proper to refer to it. Hadmor Productions v. Hamilton(5). In my view change of language suggests change of intention. Had the legislature intended to preserve the exemption for small dwelling houses as such Regulation 3(2) would surely have read: "This regulation applies to any building or dwelling house situated in the New Territories -" The question for us, therefore, looking at the plans, photographs, affirmations and exhibits, including the report of Cheng Hon Kwan dated the 26th of October 1981, is to determine whether or not each pair of dwellings constitutes one or two domestic buildings. To such a question I can only say that in my opinion the answer, to some extent based on impression, is "one". 46. Sub-issues (ii) and (iii) require findings, happlly unaffected by any finding under sub-issue (1), as to the points between which the height of "Viking Villas" is to be measured. I have already road the terms of Regulation 3(2)(b) of the 1967 Regulations. By Regulation 2, height means "the height measured to the highest part of the building or in the case of a building which is roofed to the level of the apex in the case of a pitched roof or to the level of the main roof in the case of a flat roof." The point of departure is not specified. Height is normally measured from ground level. When a building stands on a slope, particularly when largely supported by stilts and whether or not the ground between these stilts is filled in and retained with concrete slabs, it is not easy to determine what constitutes ground level and the intent and meaning of the legislation is obscure. In the circumstances I turn for assistance, by way of analogy, to Regulation 23(1)(a) of the Building (Planning) Regulations and find that height is to be measured from the mesne level of the ground between the point where the front stilts enter the soil and the point where the bottom of the concrete platform abuts onto the slope. The buildings in question are roofed in the manner already described. Looking at the definition of "height", which I have read, as a whole it appears in effect to pinpoint the highest part of a building which provides shelter. I am satisfied that the measurement must be made to the level of the apex of the pitched roof over the pump-room and stairs. 47. It is common ground that these findings will also of themselves bring Viking Villas within the ambit of the whole of the Principal Ordinance. Indeed, that the buildings are too high even on the basis of the submissions and evidence advanced by the Applicants is conceded. It is not for us in determining preliminary sub-issues on an application for judicial review to apply the "de minimis rule" historically deployed only for the purpose of dismissing frivolous causes of action. 48. Sub-issue (iv) requires a finding as to the meaning of the words "roofed over area of each building". It is only relevant if by "each building" is meant "each dwelling" because if my finding on sub-issue (1) is correct "the building" is admittedly within the ambit of the legislation on the basis of size. 49. In the absence of any definition the intent of the legislation is obscure. A building comprises not only the area contained within its external walls but also any integral balcony on balconies. In the present context all are covered, sheltered, and roofed-over either by the flat roof, by one of the pitched roofs or by the eaves and gutters. Again obtaining assistance by analogy, this time with Regulation 23(1)(b) of the Building (Planning) Regulations, I find that the roofed area of each dwelling is the largest of the floor plans of the ground, first or second floors, in so far as they may differ, inclusive of any balcony or balconies which is or are covered, sheltered and roofed-over in the way described. Once more it is common ground that this finding will of itself bring "Viking Villas" within the ambit of the whole of the Principal Ordinance. 50. In the circumstances the answer to the comprehensive preliminary issue is, in my opinion, that the Applicants' buildings are no more exempt from sections 14 and 24 of the Buildings Ordinance, Cap. 123 than from sections 24(a) and 26 and I would grant a declaration in appropriate terms.
(1) [1980] H.K.L.R. 593 at p.598.
(1) 1972 AC 342 at p 361D (2) 1980 HKLR 593 at p 598 (3) 1958 1 WLR 1296 at p 1298/9 (4) 1891 AC 531 at p 591 (5) 1982 2WLR 322 at p 334B Representation: Mr. John Swaine, Q.C. with Mr. Anthony Neoh instructed by Messrs. M.K. Lam & Co. for Applicant Mr. N.T. Kaplan, Q.C. with Mr. N.L. Strawbridge, Crown Solicitor for the Respondent |
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