Firebird Ltd v. Attorney General

HCMP000517/1980

Building Planning regulations - amendment not retrospective - definition of class 'C' site - no accrued rights pending determination of application.

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Coram: Bewley, J.

Date of Judgment: 8th July, 1981

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JUDGMENT

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Background

1. The plaintiff is a development company, which intends to construct a 14-storey composite building comprising shops and flats. Plans were drawn up and submitted to the Building Authority on 8th September, 1979.

2. On 19th October, 1979, the application was refused on 2 grounds, namely -

3. The Building (Planning) Regulations divide building sites into 3 classes, A, B and C. At the time of the plaintiff's application, they were defined in Regulation 2(1) thus -

4. In October, 1979, Regulation 2(1) was amended by the substitution of the following definitions -

5. The significance of the classification is that the percentage site coverage and plot ratio vary from class to class, the highest and, from the developer's point of the view, the most favourable being class C.

6. The plaintiff had drawn up its plans on the basis that, as the site abutted on 3 streets, it had a class C site. Unfortunately, 2 of the streets being less than 4.5m. wide, they ceased to be classified

as 'streets' under the new regulations and the site became a class A site. In consequence, a total of 5,338 sq. ft. of permissible floor space has been lost.

7. The plaintiff seeks 2 declarations -

8. The explanatory note of the amending regulations reads -

"The Building (Planning) Regulations classify sites by reference to the streets on which sites abut. These amending regulations make clear that in classifying sites for the purposes of the regulations streets of less than 4.5m. wide are to be disregarded."

9. It is the contention of the Crown that the amendment merely declared the existing law. In other words, the plaintiff's entitlement was never more than a class A site. If this is indeed the case, it will not be necessary to consider the timing and effect of the amending regulations.

The Cheong Ming Case

10. There is, however, a decision of this Court, dated 6th July, 1979, according to which, as the regulations then stood, the plaintiff would have been entitled to a class C site. The Crown says this case was wrongly decided. It is Cheong Ming Investment Co. Ltd. v. Attorney General⁽¹⁾.

11. There was no appeal from that decision and counsel for the plaintiff submits that the learned judge interpreted the old regulations correctly and that the new regulations have, therefore, effected a change in the law.

12. My first task must be to examine the judgment in that case. There is no presumption or inference that, because there was no appeal, the learned judge was right.

13. Section 14 of the Ordinance provides that no person shall commence or carry out any building work, without having obtained from the Building Authority approval of prescribed documents and consent to begin 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.

14. The matter is governed by a series of complicated regulations. Trainor J. first set out the definition of street in section 2 of the ordinance -

"'street' includes the whole or any part of any square, court or alley, highway, lane, road, road-bridge, foot-path, or passage whether a thoroughfare or not."

15. Then he quoted regulation 2 -

"'street' includes any footpath and private or public streets."

He then considered regulation 16, which deals with the question of the height of a building.

Regulation 16(1) provides -

"Where a building abuts, fronts or projects over a street, the height of such building shall be determined by reference to the street shadow area thereof."

Regulation 16(2) and (3) then proceed 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 -

16. I respectfully agree with the conclusion that the word 'street' must mean street as defined by the ordinance, but limited to one of a width of at least 4.5m. 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.

17. The learned judge then looked at regulation 19, which is in these terms -

"Where a site abuts on a street less than 4.5.m. wide or does not abut on a street, the height of a building on that site or of that building, the site coverage for the building or any part thereof and the plot ratio for the building shall be determined by the Building Authority."

18. In either of these cases, the Building Authority has complete discretion as to how the height, site coverage and plot ratio shall be determined. In all other cases, the height of a building must be determined in accordance with regulation 16.

19. The learned judge then came to regulations 20, 21, 22 and 23. Regulation 20 prescribes the permitted coverage of classes A. B and C sites. Regulation 21 prescribes the plot ratio. In neither case may the coverage or ratio exceed what is specified in the First Schedule to the regulation. Regulation 22 provides that in certain cases the site coverage and the plot ratio may be exceeded.

20. Regulation 23(1) provides -

"For the purposes of regulations 19, 20, 21 and 22 -

21. This is the crux of the matter. As Trainor J. put it, "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 3 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 4.45m., 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."

22. I am bound to say that I am unable to find fault with the learned judge's reasoning or with his conclusion. Though he does not mention it in his judgment, one does not expect to find such an important definition, absolutely crucial to every developer, and his first point of reference, to be tucked away so obscurely in a sub-regulation. It should be where Trainor J. held it to be, and now undoubtedly is, namely in regulation 2(1), which classifies the various kinds of site.

23. It would have been neater, as Mr. Barlow has observed, if in regulation 23(1) para. (c) had been inserted immediately after (a), but the draughtsman apparently did not wish to interrupt the flow of the regulation. The use of the conjunction 'and' 'before (c) also supports the view that the reference is to streets in (a), not to streets in the other regulations.

24. Moreover, Trainor J. has ably demonstrated that any other inter-pretation makes nonsense of regulation 19. As he put it at page 9 of his judgment -

"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)(a). It is an ineptly drafted regulation so far as regulation 19 is concerned but there is no doubt as to what was intended."

Discretion under regulation 19

25. Counsel for the Crown submits that, even if Cheong Ming was rightly decided, this case falls within regulation 19 and the Building Authority had a discretion as to site coverage and plot ratio. Although he purported to deal with the matter under the amended regulation 20, he was, according is Mr. Barlow, in fact exercising his discretion under regulation 19 in refusing the application.

26. Quite apart from the fact that the Building Authority has not regarded this as a regulation 19 case, the wording of the regulation does not, in my judgment, lend itself to such an interpretation. As I read it, it does not cover the situation where there is more than one street less than 4.5 m. wide - as in the present case - but only where a site abuts on a single street less than 4.5 m. wide, or abuts on no street at all. Were it otherwise, the legislature could easily have spelled it out.

27. In any case, the Building Authority cannot be heard to say that he refused the application in the exercise of the general suthority conferred by regulation 19, when it is clear that he judged it according to the strict rules and found it wanting.

28. At the time of the plaintiff's application, therefore, the site was a class C site. The new regulations were published in the Gazette on 9th October 1979, and the refusal came on 19th October, 1979.

Date of operation of new legislation

29. Counsel for the Crown concedes that, if the regulations did not come into effect until 30th October, the Building Authority was not justified in refusing the application on the stated grounds. Section 38(5) of the ordinance provides: "Such regulations shall be published once in the Gazette at least 3 weeks before coming into operation: provided that where the Governor in Council deems it expedient such publication may be dispensed with."

30. The Governor in Council has purported to exercise his discretion concerning publication. The Gazette notice commences: "Made by the Governor in Council under section 38 and in pursuance of the power conferred by the proviso to section 38(5)."

31. The question is whether the discretion relates to the 3 week period, to publication in the Gazette, or to publication as a whole. If the former, the amendment took effect on the date of publication, otherwise not until 30th October.

32. Section 3 of the Interpretation Ordinance provides that 'Ordinance' means subsidiary legislation made under any ordinance. Section 20 provides -

"Every Ordinance shall -

33. It is clear from this that the discretion must relate to the 3 week period. When the Governor in Council declared that he was exercising his discretion, he was bringing the legislation into effect forthwith.

Whether retrospective

34. Counsel for the Crown also maintains that the amending regulations were intended to be retrospective: that the terms of the amendment make it clear that it was intended to vary the mutual relationship between the plaintiff and the Building Authority.

35. There is, however, a presumption against retrospection. Retrospective effect is not to be given unless, by express words or necessary implication, it appears that this was the intention of the legislature. Phillips v. Eyre.⁽²⁾

36. Furthermore, the question whether subordinate legislation is capable of having retrospective effect depends upon the scope of the enabling power. DPP v. Lamb⁽³⁾. In this case that is section 38 of the Building Ordinance, which is silent on the point. It is not, in my judgment, possible to import any such intention. I find, therefore, that the new regulations are not retrospective to the date when pending applications were lodged.

Accrued rights

37. Thus, as predicted by Mr. Widdicombe, it all comes down to the question of accrued rights: that is to say whether the plaintiff was entitled to have its application determined according to the law in operation on 8th September, 1979.

38. Section 23 of the Interpretation Ordinance provides -

"Where an Ordinance repeals in whole or in part any other Ordinance, the repeal shall not -

39. It is provided by section 15(1) and regulation 30 of the Building (Administration) Regulations, made thereunder, that the Building Authority shall be deemed to have given his approval to building plans unless, within 60 days from the date on which the plans were submitted, he has notified his refusal in writing.

40. Section 16(1) of the ordinance sets out 16 grounds on which approval may be refused. Mr. Widdicombe submits that, unless one or more of these grounds exist, the applicant is entitled to approval.

41. It is necessary to consider some authorities. The first is Hitchcock v. Way,⁽⁴⁾ in which it was held that, where the law is altered by statute pending an action, the law as it existed when the action was commenced must decide the rights of the parties, unless the legislature, by the language used, showed a clear intention to vary the mutual relationship of such parties.

42. Similarly, in Re Joseph Suche⁽⁵⁾ the Master of the Rolls held that the Judicature Act, 1875, did not apply to a winding-up that had been commenced before the Act came into operation. He so ruled because "it is a general rule that when the legislature alters the rights of parties by taking away or confirming any right of action, its enactments unless in express terms they apply to pending actions, do not affect them."

43. Both these case, be it noted, concerned existing rights of action enforceable in court.

44. In Heston & Isleworth Urban Council v. Grout,⁽⁶⁾ the Court of Appeal refused to invalidate a lawful notice given under a statute, sub-sequently amended by a later Act. The notice, served by the local authority, required the street frontager to sewer and make up a private street. Lindley L.J. said at page 312: "It would be, I think, a very strange and forced construction to say that the notice would have to be dropped and that everything done under it would have to be done over again under a fresh notice."

45. In Colonial Sugar Refining Co. v. Irving,⁽⁷⁾ it was contended that an Australian statute, the Judicature Act, 1903, was retrospective, in that it applied to a suit pending when the Act was passed and tried soon afterwards, and took away a right of appeal to the King in Council. The Privy Council did not agree. Lord Macnaughten said at page 372: "The Judicature Act is not retrospective by express enactment or necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure."

46. A similar example is Lewis v. Hughes,⁽⁸⁾ where the right to a deduction from rent was held to be a right already accrued to the lessee and could not be taken away by statute in the absence of a contrary intention.

47. In Hamilton Gell v. White,⁽⁹⁾ it was held that as soon as a landlord, with a view to selling the property, gave his tenant notice to quit, the tenant acquired a right to compensation under section 11 of the Agricultural Holdings Act, 1908, provided he complied with certain conditions as to notice under that section, which could not be defeated by the repeal of the section before he could satisfy the second condition.

48. Mr. Widdicombe contrasts the above cases, all of which concerned vested enforceable rights, in situations which did not call for further action by persons other than the beneficiary or grantee, with a more modern case, DPP v. Ho Po Sang.⁽¹⁰⁾

49. This was an appeal from the Full Court of Hong Kong to the Privy Council. The facts are set out in the headnote thus: ''The second appellant the Crown lessee of premises in Hong Kong, of which the respondents were tenants and subtenants, applied for a renewal of his lease, and a memorandum of agreement was signed which provided, inter alia, that he was, after demolition of the then existing buildings which were subject to the Landlord and Tenant. Ordinance, to erect new buildings on the site. Sections 3A-E of the Ordinance as amended provided, inter alia, that if the Director of Public Works (the first appellant) gave a rebuilding certificate the lessee was entitled to call on those in occupation to quit. The lessee applied for a rebuilding certificate, and on July 20, 1956, the director notified him of his intention to give a certificate. Thereupon, in compliance with section 3B(1) of the Ordinance the lessee served notices of the director's intention on the tenants who, pursuant to section 3B(2), appealed by way of petition to the Governor in Council, and the lessee cross-petitioned under section 3B(3).

50. By the Landlord and Tenant (Amendment) Ordinance, 1957 (effective from April 9, 1957), section 3A-E of the Ordinance were repealed. By that date no decision had been taken by the Governor in Council in regard to the petition and cross-petition. On October 12, 1957, however, the director purported to give the lessee a rebuilding certificate under section 3A(1) and the latter, in purported pursuance of section 3E(1), served notice to quit on all the persons in occupation. The tenants and subtenants thereupon began the present proceedings, contending, inter alia, that after the repeal of sections 3A-E the director had no legal authority to issue a rebuilding certificate."

51. The judgment of their Lordships was delivered by Lord Morris of Borth-Y-Gest. He said at page 921 -

Mr. Widdicombe quoted this case as an extreme example, where there was no more than a 'hope or expectation' in the lessee. He points then to the present case where, he submits, there is only a fixed number of specified obstacles to be overcome before the Building Authority must approve his application. He asks the Court to hold that this case falls on his side of the line dividing Ho Po Sang and the other cases.

There is a half-way house represented by Free Lanka Insurance Co. Ltd. v. Ranasinghe.⁽¹¹⁾ In that case liability was not actually established by the time the law was changed. But it was held the injured person's "service upon the appellants was an assertion by him of his statutory right against the appellants; and nonetheless effectively so because the quantum of his claim was dependent upon the finding of the Court in a decree made in his favour ..........",

per Lord Evershed at page 552.

As his Lordship put it: "The respondent had as against the appellants something more than a mere hope or expectation ..... he had in truth a right ...... although that right might fairly be called inchoate or contingent."

52. Ho Po Sang was certainly very different from the earlier cases, where the person concerned was already clothed with his right at the time of the amending legislation. Moreover, the present case has an affinity with Ho Po Sang, in the sense that the latter was dependent upon further action by another person, the Governor in Council.

Conclusion

53. It seems to me, bearing the above principles in mind, that the scrutineering process required of the Building Authority, followed by the exercise of his discretion, reduced the plaintiff's application, if not to a mere hope or expectation, at least to something short of an accrued right, as determined in the cases cited. The applicant is not entitled to approval, until the Building Authority has examined the application, with reference to the listed grounds of refusal.

54. How can the applicant, for example, know whether his plan will con-travene a draft plan prepared under the Town Planning Ordinance (d); or whether it will result in a building of a different height, or intended use, to a building in the immediate neighbourhood, approval for which has been given by the Building Authority (g); or whether access to the street might, in the Building Authority's opinion, be dangerous to traffic (h)? These are all matters that must be considered by the Building Authority, who is in possession of information not available to the applicant.

55. I have considered Mr. Widdicombe's objection that, if the new law is to apply to the plaintiff's application, the effect of section 15(1) may be nullified. Suppose, he argues, the regulations took effect on the 59th day after the date on which the application was lodged. This would not give the Building Authority sufficient time to consider it properly.

56. I think the answer to this lies, to some extent, in section 39(1), which provides -

"(1) Any regulations made under this Ordinance may provide that where plans of building works, street works, lift works or escalator works are submitted to the Building Authority within such period from the coming into operation of the regulations as may be prescribed therein, he may approve any such plans which comply with the provisions of the law before the coming into operation of such regulations and may give consent to the commencement of the works shown therein; and the provisions of sub-section (2) shall apply to such works and to any building which may be erected, any street or access road which may be formed, constructed or laid out or any lift or escalator installed in consequence thereof.

57. If the Governor in Council feels that plans in the pipeline should not be prejudiced, he may authorise the Building Authority to approve them in accordance with the old law. This is a matter of policy. The example given is, of course, an extreme one and unlikely in practice to occur.

58. For these reasons both declarations are refused with costs.

Representation:

Mr. Widdicomber, Q.C., Mr. K. Bokhary, (Woo, Kwan, Lee & Lo.) for plaintiff.

Mr. Barlow and Mr. P.T. Nunn, Senior Crown Counsel, for defendant

(1) H. C. A. No 250 of 1979

(2) (1870) 6 Q. B. 1

(3) (1941) 2 K. B. 89

(4) (1837) 112 E. R. 360

(5) (1875) 1 Ch. D48

(6) (1897) 2 Ch. 306

(7) (1905) A. C. 369

(8) (1916) 1 K. B. 831

(9) (1922) 2 K. B. 422

(10) (1961) A. C. 901

(11) (1964) A. C. 541