Cheng Yick Chi Adn Others v. Attorney General

HCMP000233/1981

Construction of Regulations 2, 16 and 23 of the Building (Planning) Regulations - "site" to be interpreted as the entire leased area - "street shadow area" held not to include any shadow cast over a portion of the site dedicated to public passage - The "street shadow area" of a building fronting two "streets" within the provisions of the Building (Planning) Regulations, one beyond and one within the site boundary, held to be calculated without regard to the street within the area of the site.

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

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Coram: LIU, J. in Court

Date of Judgment: 4th July 1981.

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JUDGMENT

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1. The plaintiffs are the respective owners of the five adjoining houses known as Nos. 5, 6, 7, 8 and 9 On Hing Terrace now standing on Section D, Section K, the Remaining Portion, Section B and Section A of Inland Lot 617. In the pre-war erection of these five houses some 60 years ago, a strip of land facing the harbour was left unbuilt upon, which presently lies in front of this row of five houses and forms part of a raised terrace, called the On Hing Terrace.

2. Next to this block of five houses stands a post-war building constructed at the end of 1964 or in mid 1965 replacing four separate but adjoining houses known as Nos. 1-4 On Hing Terrace of like dimensions and design as those of the plaintiffs' Nos. 5, 6, 7, 8 and 9. In the approval of the building plans for Nos. 1-4 On Hing Terrace, a similar unbuilt on front portion facing the harbour was treated by the Building Authority as a "street" for the Building Ordinance and all the Building (Planning) Regulations.

3. The plaintiffs are desirous of erecting on their parcels of land a new building in a joint redevelopment scheme. Their submission of building plans was rejected by the Building Authority on, inter alia, the ground that the unbuilt on portion was a street for the purposes of determining its height, site coverage and plot ratio under the Building (Planning) Regulations.

4. What was assumed in relation to the new building standing on the site of Nos. 1-4 On Hing Terrace would not bind the plaintiffs as owners of Nos. 5, 6, 7, 8 and 9, but the Building Authority's rejection of the plaintiffs' proposed building plans would at least give the appearance of consistency.

5. If the area available for redevelopment, as computed under these regulations, were to be exclusive of the unbuilt on portion, the gross floor area of a new building in the plaintiffs' scheme would yield some 1,698 square metres less. Another material aspect for consideration is the true meaning of the term "the frontage of the building" which would affect the permissible height as governed by what is known as "the street shadow area".

6. By this originating summons, the plaintiffs pray for the following declarations:

7. Lying to the north of the unbuilt on portion of Nos. 1-9 On Hing Terrace is a narrow lane which is much less than 4.5 metres wide and physically impassable, called Mason's Lane. Nos. 1-9 On Hing Terrace are served in the rear by a small scavenging lane. Suffice it for me to say that Mason's Lane in front and the scavenging lane in the rear may be ignored in these proceedings by reason of their insignificant dimensions. On its east/west sides, the terrace comprising Nos. 1-9 On Hing Terrace is sandwiched between Wyndham Street next to No. 1 and Zetland Street next to No. 9. The unbuilt on portion is inaccessible to vehicular traffic; at each end of the unbuilt on portion steps lead from the Wyndham Street level next to No. 1 and from the Zetland Street level next to No. 9 to the raised terrace at which the unbuilt on portion and the plaintiffs' premises are situated.

8. It was common ground that the plaintiffs' proposed scheme as presented to the Building Authority was a development on one site and that the unbuilt on portion had duly been dedicated to the public for the purposes of passage.

9. Counsel for the plaintiffs readily recognized the comprehensive definition of "street" in section 2 of the Buildings Ordinance as supplemented by that in regulation 2 of the Building (Planning) Regulations. The Court was reminded that both in section 2 and regulation 2, the definition of "street" was prefaced by: "unless the context otherwise requires" and that for the purposes of regulations 16 and 23, a street must at least be 4.5 metres wide.

10. Regulation 19 of the Building (Planning) Regulations seems to confer an unfettered discretion on the Building Authority as regards the optimum height of, site coverage and plot ratio for a building which abuts on no street or a street of less than 4.5 metres in width. Regulation 20 deals with permitted site coverage and Regulation 21 permitted plot ratio. These latter two regulations allow varying degrees of maximum land development according to its categorization as "Class A site", "Class A site" or "Class C site". For our present purposes, it would be convenient to take "Class A site" as meaning a site which abuts on one street or more of not less than 4.5 metres wide and "Class B site" as meaning a corner site abutting on two streets both of not less than 4.5 metres wide and "Class C site" as meaning a corner site abutting on three streets all of not less than 4.5 metres wide.

11. It was submitted on behalf of the plaintiffs that in the absence of any statutory definition for the word "site", the leased areas vested in the plaintiffs under their respective assignments were prima facie the "site". Counsel contended that the only modification sought to be introduced by the Buildings Ordinance was contained in regulation 23(2) of the Building (Planning) Regulations. Regulation 23(1) and (2) read as follows:-

"23. (1) For the purposes of regulations 19, 20, 21 and 22 -

(2) In determining for the purposes of regulation 20, 21 or 22 the area of the site on which a building is erected -

12. For the definitions of "Class A site", "Class B site" or "Class C site" and regulations 19, 20 and 21, the unbuilt on portion was, as I understood counsel, conceded to fall within the wide-ranging definition of "street", but it was urged upon me that both the classifications of site and regulation 23(2) brought into focus the site in contrast with the building thereon. I turn to consider first regulation 23(2). The plaintiffs claimed that paragraph (b) thereof included, for determining the area of the site, the portion unbuilt upon, be it a "street" or not, by reason that the same had been "dedicated to the public for the purposes of passage". That this area had for over 60 years been so dedicated was not contested, though the terms (if any) of such dedication were never clarified in these proceedings. Counsel for the defendant also took no issue with the plaintiffs that regulation 23(2)(a) and regulation 23(2)(b) were not necessarily mutually exclusive, but it was contended that regulation 23(2)(b) envisaged a present or future dedication and would give no credit for a past dedication. I do not share that interpretation, as Mr. Widdicombe pointed out, I think rightly, that regulation 23(2)(b) referred to "any area dedicated to the public" and not "any area to be dedicated to the public". In my judgment, for the purposes of regulations 20, 21 or 22, the "area of the site" will include the dedicated unbuilt on portion within the parcels belonging to the plaintiffs.

13. Thus, the questions posed for my consideration in prayers (a) and (b) in the originating summons must be answered in the affirmative. Indeed, the unbuilt on area has admittedly been dedicated to the public for the purposes of passage, and such unbuilt on portion must be so included in the site area for the purposes of calculating the site coverage and plot ratio for the plaintiffs' proposed new building.

14. "Site" is not defined, but if a "site" were to be restricted to the area of land utilized in or available for development, it would be impossible to include for "the area of the site on which a building is erected" a space dedicated for public passage under regulation 23(2)(b). The segregation of a built up area within the site from the "site" itself may also be found in the language of regulation 21(3) and the definition of "site coverage" in regulation 2.

15. I concur with counsel's approach that "site" is prima facie the leased area. The area of the site is not confined to and does not necessarily mean the built up area. With these observations on the word "site", I come to the third declaration sought on site classification. "Class A site", "Class B site" and "Class C site" are defined with reference to a site abutting a street or streets or a corner site abutting two or more streets. It need be constantly remembered that it is the "site" abutting a street or streets and not the building thereon which is under consideration. It is noteworthy that whenever "site" appears in the regulations, it is invariably paired only with the verb "abuts", or at times "fronts" but understandably never with "projects over" which seems to be appropriate only to a building. The site of the plaintiffs' abuts Zetland Street and Mason's Lane, the latter of which is less than 4.5 metres in width. The plaintiffs' site abuts only one street and is therefore a Class A site. The answer to the query raised in the third prayer in the originating summons is also in the affirmative.

16. I pass on lastly to regulation 16, the basic calculation of the "street shadow area" is (F x W)÷2 as supplemented by the formulae in paragraph (3), F being the length of the frontage of the building and W being the width of the street upon or over which the building abuts, fronts or projects. Regulation 16(4) defines "frontage" in relation to a building as meaning the boundary of a site upon which the building is erected.

17. Regulation 16 is designed primarily to regulate shadows cast over a street. For the purposes of regulation 16, no passage of less than 4.5 metres wide can be a street. It can readily be appreciated that regulation 16 was obviously not intended to enjoy a general application to private ownership. First of all, it is infrequent to spare any open space of 4.5 metres in width on private land. Moreover, it would be optional for an owner to leave no open area within the statutory meaning of a "street".

18. That regulation 16 aims at controlling access of light and air to a public place lying beyond privately owned property can be demonstrated by the statutorily prescribed perimeter whereby a "street shadow area" is to be delineated. A "street shadow area" in relation to a building is its shadow cast over a street. Assuming a building to be rectangular in structure with a flat top but set back from the boundary of the lot which leaves no room sufficient to form any "street" within a "street shadow area" in regulation 16 is contained by (1) a line on the street the projection of which would manage to meet the silhouette of the roof at an angle of 76^o with the ground (2) a line formed by the "frontage of the building" i.e. the site boundary opposite the building (and not the bottom edge of that side of the building set back) and (3) two lines drawn at right angles to the centre line of the street from each extremity of the "frontage of the building" i.e. the site boundary opposite the building (again not from each extremity of the bottom edge of that side of the building).

19. A "street shadow area" means "an area on the surface of a street". If in fact the "frontage of the building" were the bottom edge of the side of the building set back from the lot boundary as in the above given example, the area contained by these four lines would extend coverage well beyond "the surface of the street" to part of the private open space lying in between the lot boundary and the building. That was clearly not the intention of the Legislature which sought, by regulation 16(4), to restrict a "street shadow area" to "an area on the surface of a street". Consequently, "frontage" in relation to a building being the boundary of the site can only mean the boundary of the lot. Thus, "site" would seem to comprise the whole of the leased area and not merely that portion actually put to use in structural development. Indeed, that appears to be unmistakenly portrayed in the definition of "frontage" in regulation 16(4) in which "site" and "building" are set in sharp contrast. That definition reads:

"'Frontage' in relation to a building, means that boundary of a site upon which the building is erected which abuts or fronts a street and includes any service lane or other opening within such boundary."

20. Take a similar building but so set back from the site boundary that an incident ray from the roof silhouette at an angle of 76^o with the horizontal would cast a shadow over the unbuilt on portion but not reaching as far as the boundary line then a strip adjoining the boundary would not be shaded from light. If the open space left unbuilt upon constituted a "street" within the meaning of regulation 16 and if the true meaning of the "frontage of building" is, as it has been shown to be, the lot boundary for that same regulation, the area bounded by these four prescribed lines would be wholly free from any shadow. In another words, the "street shadow area" so mapped out would contain no shadow. That would be intolerably ludicrous. Obviously, regulation 16 was not intended to apply to the situation of having a "street" within a site.

21. These illustrations have, in my view, demonstrably verified the concepts (1) that "frontage of the building" means the lot boundary, (2) that a "street shadow area" is exclusively referable to an area on the surface of a street and (3) that there can be no "street shadow area" within the boundaries of an assigned lot.

22. In the instant case, the unbuilt on portion has admittedly been "dedicated to the public for the purposes of passage", but it is not and cannot be denied that otherwise the plaintiffs still retain, as registered owners, all proprietary rights over the entire leased areas. There is no evidence to the contrary. Regulation 16 evidently does not envisage the control of shadows cast over any space within a privately owned site dedicated for public passage, and immense difficulties would inevitably arise when the regulation is sought to be invoked with reference to such an unbuilt on portion as in these proceedings.

23. The dedication of the unbuilt on portion for public use has not had the effect of reducing the area of the site or re-aligning its boundary. Once it is accepted that the site boundary is a baseline and that the site boundary has never been shifted, the maximum permissible street shadow area must be calculated with reference to the area statutorily defined without regard to the unbuilton portion within the site. The proposed building will front Zetland Street as well as 'the street' represented by the unbuilton portion dedicated, but for these reasons I hold that the street shadow area must be calculated without reference to the nature or dimensions of the dedicated portion. It is quite unnecessary for me to consider if any of the other formulae could be satisfactorily adapted for use in the circumstances of this case.

24. Mr. Strawbridge argued on behalf of the defendant that for the purposes of regulation 16, "site" meant the actual built up area excluding the portion dedicated for public use or the area available for the proposed redevelopment. For all the above reasons, I cannot subscribe to the definition of "site" canvassed by Mr. Strawbridge. In the instant case, the "street shadow area" for the plaintiffs' proposed building must, in my view, be calculated under regulation 16 with regard to only Zetland Street.

25. In the circumstances, I would accede wholly to the application in terms and make the declarations sought accordingly with costs to the plaintiffs; certified fit for two counsel.

Representation:

Mr. Widdicombe, Q.C. and Mr. Oswald Cheung, Q.C. with Miss A. Eu instructed by P.K.H. Wong & Co. for Plaintiffs.

Mr. Strawbridge and Mr. Edward Johnson, Counsel for Defendant.