Aik San Realty Ltd and Others v. Attorney General
Read the full judgment text of HCMP 651/1980 on BabelCite. This High Court CFI judgment.
1. Between May 1978 to November, 1979, the plaintiffs purchased six houses Nos. 16-26 Yun Ping Road with similar site areas. These six houses are sandwiched between Yun Ping Road and Jardine's Crescent. From July to November, 1979, a narrow strip of land facing Jardine's Crescent was assigned by the plaintiffs to Mentor Estate Limited for $570,000. This strip of land lies immediately next to the pavement of Jardine's Crescent and extends all the way along five of the six houses i.e. from No. 18
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HCMP000651/1980
----------------- Coram: Liu, J. in Chambers. Date of Judgment: 23rd December, 1980 ----------------- JUDGMENT ----------------- 1. Between May 1978 to November, 1979, the plaintiffs purchased six houses Nos. 16-26 Yun Ping Road with similar site areas. These six houses are sandwiched between Yun Ping Road and Jardine's Crescent. From July to November, 1979, a narrow strip of land facing Jardine's Crescent was assigned by the plaintiffs to Mentor Estate Limited for $570,000. This strip of land lies immediately next to the pavement of Jardine's Crescent and extends all the way along five of the six houses i.e. from No. 18 to No. 26 but leaving No. 16 unencroached. It measures 140 feet in length but only 13 inches in depth. The more precise site area of this narrow strip is given as 12.801 square metres (137.738 square feet) on the plan exhibited to the affirmation of the architect, Simon Kwan dated 15th July, 1980 and therein marked "SK-6". Of the total site area of 10,585.438 square feet for these six houses assigned to the plaintiffs, this filamentous portion represents only 1.301 per cent. 2. Mentor Estate Limited proposes to erect an advertising signboard on this narrow strip for some $90,000. The wall-like signboard will run parallel to Jardine's Crescent along the entire elongated site of Mentor Estate Limited reaching a height of 18 feet. On the remainder of the original total site area of these six houses, the plaintiffs intend to erect an almost 255-foot tall 27-storeyed building which is over fourteen times the height of the advertising signboard of Mentor Estate Limited. 3. The plaintiffs and Mentor Estate Limited retain the same professional advisers. The proposed plans for the 255-foot tall 27-storeyed building and the 18-foot advertising signboard were submitted for approval at about the same time on the 28th and 27th November, 1979 respectively. There is ample sign of co-ordination between the plaintiffs and Mentor Estate Limited, but it cannot be denied that they are in fact separate groups of legal entities. 4. On the 11th April, 1980, the proposed plan for the advertising signboard of Mentor Estate Limited was provisionally approved by a Form 12, subject to modification of certain structural details to overcome inadequate resistence to wind stress. The load carried by the four steel foundation columns in the original design has been evenly distributed to a modified reinforced foundation of eleven steel columns. Final approval for this redesigned advertising signboard of Mentor Estate Limited is not expected to be further delayed by departmental objections. The signboard stretching from end to end of five of the six houses facing Jardine's Crescent i.e. Nos. 18-26 inclusive, will deprive the plaintiffs' 27-storeyed building actual land contiguity with that street save for that representing the present boundary of No. 16. 5. The plaintiffs' 27-storeyed commercial and domestic complex is so designed that its main entrances will face Yun Ping Road. The two main entrances on the upper ground level, one on each side of the building, will open onto Yun Ping Road. Next to one of the main entrances will be a staircase also discharging into Yun Ping Road. The rear side of the complex facing Jardine's Crescent is designed as a blank wall with no windows or openings except for 1/6th of its lower ground floor level which will physically join up with Jardine's Crescent. That rear portion in actual contact with the street will provide a rear entrance on the lower ground floor level from Jardine's Crescent, and through this rear entrance access may be gained to all the upper floors of the building. A second staircase discharges into Jardine's Crescent via two ramps and a pair of street openings. A further exit on this level will lead from the transformer room which is designed as a self-contained unit. 6. It would not be impertinent to refer here to Regulation 41(2) of the Building (Planning) Regulations which requires the provision of a second staircase as a means of escape in case of emergency for a building exceeding 6 storeys in height. Therefore, the second staircase in the rear discharging into Jardine's Crescent is a necessity required by law. 7. The plaintiffs' submission for their proposed commercial and domestic complex was rejected by the Building Authority on the 25th January, 1980 principally on account of their alleged noncompliance with the provisions in Regulation 16 of the Building (Planning) Regulations. 8. The marginal note of Regulation 16 refers to "Height of buildings adjacent to street" which, if it is permitted to have regard to, may assist in gaining an insight into the purport of Regulation 16, but even published together with the Ordinance, marginal notes in Hong Kong have also been jealously excluded. See In The Matter of The Canton Trust and Commercial Bank Limited (No. 1)(1) and A.G. v. Asia Electronics Company Limited(2). 9. The relevant parts of Regulation 16 are set out below:
10. Thus, under Regulation 16, when and only when a building abuts or fronts (there is no question here of any projection over) a street, its height is to be determined by reference to the street shadow area. In the prescribed formula for calculating the street shadow area of a building, the length of its frontage is one of the governing factors. Frontage has been defined as meaning the site boundary which abuts or fronts a street. It follows that if a building does not abut or front a street as envisaged by Regulation 16, limitation on its street shadow area or height limitation does not even begin to apply. 11. On sheet 4 of the submitted drawings for the plaintiffs' proposed 27-storeyed building, the authorized architect has calculated its street shadow area over Jardine's Crescent. By necessary implication, it must have been conceded, at least architecturally, that the plaintiffs' building will abut and/or front Jardine's Crescent. As between the plaintiffs' authorized architect and the Building Authority, the difference seems to lie merely in the proper length of the frontage of the proposed building on its side facing Jardine's Crescent for calculating its street shadow area. The plaintiffs' authorized architect maintained that such frontage length should be confined to the boundary of No. 16 in actual contact with Jardine's Crescent, as the boundary of Nos. 18-26 facing Jardine's Crescent would be, so argued the plaintiffs' authorized architect, separated from Jardine's Crescent by the thirteen inches intervening advertising signboard of Mentor Estate Limited. The Building Authority took the stand that the length of the frontage of the plaintiffs' proposed building on the side facing Jardine's Crescent i.e. its site boundary along that street, must include the whole length stretching from Nos. 16 to 26 notwithstanding the 18-foot tall intervening signboard. On the 25th January, 1980, despite the lack of actual physical contiguity of land for 5/6ths of the site boundary facing Jardine's Crescent, the Building Authority rejected the plaintiffs' submission for, inter alia, the reasons in the following terms:
12. In these proceedings, leading counsel for the plaintiffs adopted a more sweeping approach. It was contended that as the plaintiffs' proposed 27-storeyed building would not itself abut upon or front Jardine's Crescent, calculation of the limit of its street shadow area over Jardine's Crescent was uncalled for. Mr. Swaine's able analysis was that the plaintiffs' proposed building could never front Jardine's Crescent by reason of two facts, firstly that with only its bare back towering over Jardine's Crescent, it was not designed to stare that street in the face, and secondly that it would have no real contiguity with that street. Further, leading counsel elaborated that the actual contact with Jardine's Crescent of the portion of the plaintiffs' proposed building along the side of the site of No. 16 presently bordering that street would not be significant enough, both in length and utility, to bring about "fronting" or "abutting" within the meaning of Regulation 16. It was pressed upon me that it was necessarily a matter of degree and that relatively the proposed 27-storeyed building ought to be taken as having no real physical contiguity with and not abutting upon Jardine's Crescent. Also for this reason, so ran counsel's arguments, it cannot front the street even should the building be facing it. 13. By their Originating Summons, the plaintiffs seek a declaration on the effect of Regulation 16 in terms of their submitted interpretation. No. 16 Yun Ping Road is section F of Inland Lot No. 457, and by their prayer for the declaration sought on the construction of Regulation 16, the plaintiffs themselves seem to have acknowledged that a portion of the site boundary of their proposed building representing the side of No. 16 presently bordering Jardine's Crescent will abut upon or front that street. Prayer (a) for that declaration of the plaintiffs is set out verbatim below:
14. The plaintiffs further crave a declaration that the Building Authority's rejection of their submitted plans for their proposed 27-storeyed building on the 25th January, 1980 was in excess of jurisdiction conferred by Regulation 16 and accordingly invalid. 15. There is yet another declaration prayed for by the plaintiffs, but no submissions were advanced in support thereof, and it must be taken as having been abandoned. 16. A number of authorities were cited to me but they must be read with caution. These cases were decided on different provisions in somewhat unrelated legislation. For our purpose, no more than a guarded reception should be given to principles of general application evolved from these decisions. Of the authorities cited to me, it is evident that in construing "fronting" and "abutting", the subject matter and the legislative purpose and object need constantly be remembered. In Wakefield Local Board of Health v. Lee & Another(3), at p.343, Grove, J. said of the words "fronting, adjoining, or abutting upon" in the following terms:
In Lightbound v. Higher Bebington Local Board(4), at p.584, Bowen, L.J. observed:
17. The authorities commended for my consideration are concerned with expenses of paving or improving a street to which the principal entrance of a house had access. Our Regulation 16 was introudced with a view to conserving the desired quantity of accessible sunlight on street level by limiting building height. It is inherently tied to shadow casting. It matters not whether there is absolute land contiguity. A building not having physical contiguity with the street may cast on it an equally unwanted shadow, and even a building one row behind, given sufficient height, may cast a shadow just as objectionable. It is only too true that not just the front of a building, but all its sides may cast an unwelcome shadow on the street. When one turns to the definition of "street shadow area" in Regulation 16(4), paragraph (a) of which refers to "every part of the side of a building", it can readily be appreciated that the object of Regulation 16 is to control a shadow cast by any side, and not just the front of a building. Therefore, the face of a building and its actual contiguity with the street are two elements which should not be given a place of prominence in the interpretation of Regulation 16. 18. In all the authorities cited, the liability for the expenses of paving or improving any part of the street was not contemplated to attach to anyone other than the owner whose building enjoyed that corresponding length of frontage. See counsel's argument at p.850 in Lightbound v. Higher Bebington Local Board(5). Whilst in those cases, the prime consideration was the benefit enjoyed, Regulation 16 seeks to impose a restriction on building height by reference to controlled deprivation of natural light. Legal interpretation of Regulation 16 aside, the question in the forefront must be whether the structure in front immediately next to the street is substantial enough to remove or dilute any harmful effect of obstruction to natural light caused by the building a row behind or conversely, whether the building behind is by comparison of such magnitude as to reduce the structure in front to an erection of no real consequence. It must not be forgotten that Regulation 16 is not concerned with a singular liability for improvement expenses but with multiple effects arising from artificial interference with incident sun rays. 19. At p.853, Smith, J. in the case of Lightbound, made what appears at first sight to be an inspiring remark: "How can there be two owners whose land fronts, adjoins or abuts on the street?" Apart from the different object sought to be achieved by the unrelated legislation in the case of Lightbound, what must not be lost sight of is that a site is two dimensional and a building is in three dimensions. The third dimension of a building is height which presents an aspect to what stands ahead and may be fronting it. Focussing on shadows cast by a side of a building, physical contiguity must lose much of its importance. It need also be remembered that although street shadow area is sought to be limited by Regulation 16, not all the buildings capable of casting an infringing shadow are captured by that regulation. It is only when a building abuts or physically or constructively fronts a street that the regulation could be invoked. 20. It is common ground that real contact is an essential ingredient in "abutting". Common sense dictates that unless a significant part of a building actually and physically touches a street, the building does not abut upon it. 21. In the instant case, a section of consequence will abut upon Jardine's Crescent. The portion actually touching Jardine's Crescent will provide a rear entrance and a pair of exits for the second staircase. In my view, the plaintiffs' proposed building will abut upon that street. 22. As for "fronting", on the facts of this case, the portion of the plaintiffs' proposed building which will have absolute contiguity with Jardine's Crescent is, in my view, of consequence. It will provide a substantial and requisite means of access to it. I have explained why physical contiguity is not vital for "fronting", but nevertheless physical contiguity of any part of the building with the street remains a factor not to be lightly ignored. Even without any actual contiguity, in determining whether a building actually or constructively fronts a street, regard must be had to considerations such as the importance of an exit road discharging into that street, the dimensions of a side overbearing upon it, the proximity of the building to the street and the nature and size of any intervening structure. It is quite impossible to attempt at an exhaustive list. Each case must be judged on its own merits. Broadly speaking, a building may front or give an aspect to a street if it presents a significant side to it by having either an important entrance leading from it or an overbearing portion virtually next to it or both. In this case, the rear wall of the plaintiffs' proposed building will have both these qualities: a side in part merely 13 inches away, reaching almost 255 feet with all its 27 storeys in addition to some contiguity providing the requisite and other entrances from Jardine's Crescent. 23. It is largely a matter of degree, but in this case there can be no doubt that the signboard of such inconsequential dimensions as compared with the plaintiffs' proposed 27-storeyed building will not achieve the effect of withholding the presentation by this building of an aspect to Jardine's Crescent. 24. In conclusion, a building in this condition with a portion in actual contact with Jardine's Crescent, in point of the justice and equity of the case, can well be said, as a building, to be both abutting and fronting that street within the context of Regulation 16. 25. How then is its street shadow area to be calculated under Regulation 16(2)? It is a fact that 5/6ths of the frontage of that proposed building facing Jardine's Crescent will be physically separated from that street by the width of thirteen inches of an intervening 18-foot tall structure owned by Mentor Estate Limited. The minimal separation in the manner earlier described will neither render the back of the plaintiffs' proposed building shadow free nor serve to sever all realistic association of that building with Jardine's Crescent. Shadow casting is not by itself a primary consideration, but I take the view that the plaintiffs' proposed building will present a significant side to Jardine's Crescent, which will in its close proximity to the street cast an alarmingly seizable shadow thereon. It is truly a matter of degree. For the purposes of Regulation 16(2), a large and liberal construction should likewise be put on the term "the frontage". In my judgment, the whole length of the rear side of the plaintiffs' proposed building (1/6th actually contiguous and 5/6ths behind a thirteen inches strip) will front Jardine's Crescent for determining the permitted street shadow area under Regulation 16(2). Even completely without contiguity, upon the facts stated the plaintiffs' proposed building merely standing some thirteen inches behind an 18-foot signboard would, in my opinion, still present a significant side in close proximity to Jardine's Crescent rendering the building itself one which would front the street and its entire side "frontage" eligible for the formula prescribed by Regulation 16(2). 26. I turn finally to the plaintiffs' arguments and will endeavour to examine them more closely. It was urged upon me that the proposed building would not front Jardine's Crescent by reason that it would neither be looking over Jardine's Crescent nor, to a material degree, actually touching it. Even for cases decided on liability for expenses incurred in paving or improving a street, absolute or actual contiguity with the street has at times been held to be unnecessary. In Lightbound v. Higher Bebington Local Board(5), Mathew, J. had this to say:
27. It would not be out of place here to revert to Wakefield Local Board of Health v. Lee(3), where the Local Board of Health required occupiers of properties separated from a street by a small stream to pay expenses incurred in street improvement. The principal outlet from these properties discharged into another street. There were two bridges built across the small stream, and the Local Board of Health's claim against the owners of these properties was as "owners or occupiers of premises fronting, adjoining, or abutting upon" that street. It was argued by the owners that as the principal entrances to their properties were all from another street, they could not be owners of premises fronting, adjoining, or abutting upon the street across the stream. Cleasby, B. took the view that the properties did not front the street across the stream but held that the properties in question were adjoining the street. At p.342, Cleasby, B. delivered his reasons:
28. Grove, J. preferred a more practical approach and made the observation that with main entrances facing a different direction, the premises in question might still be said to front the street across the stream. At p.343, the learned judge concluded:
The liberal view of Grove, J. was not favourably received by Bowen, L.J. in Lightbound v. Higher Bebington Local Board(4):
In Lightbound's case, it was held that cottages erected on plots of land separated from a street by a 5-foot wall belonging to a different owner did not front, adjoin, or abut on the street so as to make their owners liable for contribution towards the expenses of sewering and paving the street. 29. In The School Board for London v. The Vestry of St. Mary, Islington(6), a school-house did not touch a street but stood back from it some 70 or 80 feet separated by a row of eleven small garden houses. The school-house and its property had its only access from the street. It was held that the school-house constructively formed part of the street within the meaning of "the houses forming the street." 30. In Stewart v. Greenock Corporation(7), the owner of the upper flat in a villa was held not to be a proprietor of premises fronting a street which was immediately outside the ground fllor flat of the villa. The only access to the upper flat was from another street. Whilst the Sheriff, Mr. McLean, Q.C. acknowledged the reality that a building might front a street with any of its four sides in the ordinary sense of the word, he construed the word "fronting" in the provision containing the words "the owners of the lands or premises fronting or abutting on" a street as having "very much the same meaning" as that of the word "abutting". Thus, he was virtually driven to conclude that as in the case of "abutting", "fronting" must be supported by absolute contiguity with the land of the street. At p.25, the Sheriff had this to say:
31. I pass then to consider the case of The Newport Urban Sanitary Authority v. Graham(8) which is another decision on the words "adjoining" and "abutting" in legislation for street paving expenses. It was there held that premises, separated from the street by the owner's own wall of 12 feet viewed from the outside, adjoined and abutted on the street. But as can be seen in the case of Lightbound(4) where the wall completely severing the property's physical contiguity with the land of the street belonged to a stranger, an opposite conclusion was reached that the premises did not front, adjoin, or abut upon the street. There will be no total severance in this case. Moreover, the authorities to which counsel alluded were decided in their particular circumstances on unrelated legislation for different objects and purposes. Buckinghamshire County Council v. Trigg(9), may serve as a reminder against any indiscriminate assimilation of the propounded principles in cases for paving expenses with those governing other legislation, particularly on dissimilar facts. In Trigg's case, the word "fronting" was to include the word "adjoining" and the word "adjoining" to include the word "abutting". Consequently, the word "fronting" had to be minced with this added spice, and the decision can offer no real assistance. At p.408, Salmon, J. attributed the decision in Trigg to its own particular facts. 32. The decision in these cases for exacting contribution towards street improvement, may lend support to the general proposition that a building facing but standing back some distance from a street fronts the street when its only or principal entrance leads to that street. In the instant case, a secondary staircase is one statutorily required by Regulation 41(2). The theme of the regulation under consideration is shadow casting. I am impressed by the definition first debated but ultimately abandoned as being insufficient by Mr. McLean, Q.C., the Sheriff in Stewart v. Greenock Corporation(7):
I find it quite appropriate to our Regulation 16 presently under discussion. A definition of "aspect" in the Shorter Oxford Dictionary which also seems relevant is given as:
In conjunction with Regulation 16(4)(a) which refers to "every part of the side of the building", it is tolerably clear that Regulation 16 seeks to draw no distinction from any one side of a building. At least, the plaintiffs' proposed building will have a necessary second staircase which is, in a sense, a subsidiary principal entrance from Jardine's Crescent. Even strictly on the general principle enunciated in the cases cited, the plaintiffs' proposed building may well be said to be fronting it. But construction of Regulation 16 should best be attempted independently of these authorities on street improvement contributions. I have no wish to whittle away these decisions in their proper context by fine distinctions, but there is obvious danger in seeking to apply principles of even the most general application in these cases to Regulation 16. 33. These entrances and exits on the lower ground level will, together with realistic land contiguity, certainly give the back of the building added importance. In all the circumstances, on a true construction of Regulation 16 independently of any of the decisions hereinbefore so eloquently relied upon, I find the intervening erection of Mentor Estate Limited in front of most of the plaintiffs' proposed building inconsequential and I hold that the plaintiffs' proposed building will abut and/or front Jardine's Crescent and that its entire site boundary along that street must be included for calculating the street shadow area. 34. For all these reasons, I dismiss the plaintiffs' Originating Summons with costs for the defendant.
Representation: Mr. John Swaine, Q.C. with Mr. Anthony Leoh instructed by Messrs. M.K. LAM & Co. for Plaintiffs. Mr. Strawbridge, counsel for the Defendant. (1) 1965 HKLR 450 (2) per Huggins, J., as he then was, unreported but judgment of which was delivered on the 23th June 1974 (3) (1876) 1 Ex.D. 336 (4) (1885) 16 Q.B.D. 579 (5) (1885) 14 Q.B.D. 849 at 850 (6) (1875) 1 Q.B.D. 65 (7) (1957) Scots Law Times 21 (8) (1882) 9 Q.B.D. 183 (9) (1963) 3 All ER 403 |