Beaux Estates Ltd v. Attorney General

HCMP001446/1982

Definition of "street" under the Buildings Ordinance Cap. 123 Circumstances when land immediately adjoining a "street" can be considered as being part of the street".

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: The Hon. Mr. Justice Mayo in Chambers.

Date: 14 January 1983

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JUDGMENT

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1. The plaintiffs are the owners of a site in Kowloon which is bounded on the west by Nathan Road, the south by Kimberley Road and the north by a small road which leads to the Royal Observatory. The Miramar Hotel is presently situated on this site. The plaintiffs are proposing to redevelop the site and are seeking a declaration that the site is a Class C site within the meaning of the Building (Planning) Regulations Cap. 123. The defendant contends that the site is a Class B Site. It is not necessary for me to go into the implications of this save to observe that if I make the declaration which is being sought the site can be more densely developed.

2. For the purposes of this application the important factor in determining whether or not the site is a Class C site is whether the road or street which I have referred to which leads to the Royal Observatory exceeds 4.5 metres in width and whether the site abuts the said road. Put very simply the issue which has to be determined is whether the verges on either side of the metal part of the road should be included within the measurement or whether the measurement is confined to the road way itself. Mr. Spence who was representing the plaintiffs conceded that unless the area of the verges are included in the calculation his application can not succeed. Equally Mr. Kaplan who was representing the Attorney General conceded that if the verges were included in the calculation the width of the road would exceed 4.5 metres.

3. There appears to be very little conflict on the facts of the case. Affidavits were lodged on behalf of both parties and I am satisfied that the road is mainly used as an access road to the Royal Observatory. In addition to this a site visit was made and it was definitely my impression that members of the public were able to walk along the road without interruption and vehicles were able to pass and re-pass which appeared to be going to the Royal Observatory. There is a narrow strip of land to the south of the road which is immediately adjacent to the walls of the building forming part of the Miramar Hotel. On the north side of the road there is also land of a similar nature but of varying width which leads to a wall or retaining wall which is set back in two sections. At the western end of the road there is on both sides of the road a chain link fence which leads to brick gate-posts on either side of the road but the gate or gates have been removed.

4. At an early stage in the proceedings Mr. Kaplan conceded that the definition of "street" contained in section 2 of the Buildings Ordinance Cap. 123 was the definition which should be applicable to this application. He made this concession on the basis of the Court of Appeal's decision in Mightystream Ltd. v. The Attorney General (1) which I understand has been the subject of an appeal to the Privy Council which will be heard in the near future. Mr. Kaplan's concession was conditional upon the Privy Council upholding the decision of the Court of Appeal. The definition of "street" in section 2 is as follows:

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

In the Mightystream case similar considerations arose and the court had to decide whether a roadway over a bridge adjoining the property in question should only include the roadway itself or whether the metal verges should also be included. This was critical as the road itself was only an average of 4.3 metres wide whereas if the verges were included the measurement came to in excess of 4.5 metres. Cons J.A. had this to say on page 62 of the report:

"To avoid the clutches of Regulation 19 a site must abut a street that is not less than 4.5 metres wide. The carriageway of the bridge is an average of only 4.3 metres although by adding the width of the two kerbs the necessary size is reached. Mr. Kaplan, who appears for the Attorney General, argues that we should look only to the carriageway, for a street is for people either to drive or walk along and if there is something adjacent which allows them to do neither it can hardly be counted as part of the street. I must confess to a great sympathy with that argument, but I have eventually come to the conclusion that the express words of the legislature - 'the whole of' - must be given meaning and that the bridge in this instance must be taken as not less than 4.5 metre wide."

It is relevant to consider the extent to which the circumstances of this case corresponded with the present application. It is ray impression that the verge which was being considered in the Mightystream case was a paved verge upon which a pedestrian could have walked had they wished to do so. The situation in the present case is not quite so simple. The land to both the north and the south of the road has certainly not been made up in any satisfactory manner ostensibly for the use of pedestrians using it. Indeed there is vegetation on both sides of the road. On neither side is the vegetation dense. However it would appear that on the south side it may well be the case that plants and shrubs have been planted beside the road for decorative purposes. On the north side it is less obvious that my deliberate attempts have been made to in any way cultivate the area but there are some mature trees spaced out at irregular intervals on the land. On neither side of the road is the vegetation such as to seriously impede pedestrians in using the area at the side of the road should it be necessary for them to do so as a result of vehicles using the road. I am by no means convinced that it is realistic to attempt to differentiate the present state of the land adjoining the roadway from the situation which would arise if it was paved intentionally for the use of pedestrians. One further aspect of the matter which I considered was that it is often the case that trees are planted either on the pavement or in the dividing area between carriage-ways of roads and I am not aware of any attempt which has been made to argue that the mere existence of trees, bushes, shrubs or other vegetation, of itself necessarily leads one to a conclusion that the area where the vegetation is growing does not form part of a roadway or street. For all practical purposes I find myself unable to distinguish the situation which arises in the present application from the circumstances which had to be considered by the Court of Appeal in the Mightystream case.

5. Mr. Spence also called in aid a number of English cases where the courts had considered what was included in a "street". He argued that it was reasonable to seek assistance from English case law as it was evident that the definition of "street" in the Buildings ordinance Cap. 123 which I have referred to is very similar to the definition of a "street!" in the Public Health Act 1875 and the Highways Act 1959. The additional words: "and includes any part of a street" were added in the 1959 Act. In Warwickshire County Council v. Atherstone Common Right Proprietors and Others ⁽²⁾ A Divisional Court considered this problem in the context of the Highways Act 1959 and at page 445 of the report Lord Widgery J. as he was then said:

"The question left to this court is whether the justices were right in law in taking that view. For my part, it seems clear that the justices, whilst having regard to the wording of the statutory definition of 'street', have considered that they must nevertheless have regard to the ordinary or popular meaning of that word as being a roadway having houses either on one or both sides. They have in effect found that West wood Road is a road but it lacks that quality of a street which the ordinary and popular meaning of the phrase would give. In my judgment it is perfectly clear that in forming that view upon those grounds the justices erred, because there is the clearest authority binding not only upon the justices but also upon this court to the effect that in construing the definition of 'street' in this section, one must not restrict the statutory words to any conception of the popular or ordinary meaning of a street."

With respect I considered this to be a most helpful commentary upon the situation and to support the contention that in construing the meaning of what comprises a ''street" it is essential to have regard to the definition contained in the ordinance notwithstanding the fact that this leads to a situation where one's normal understanding of the position may be at variance with the result one achieves by a strict interpretation of the statutory word.

6. Most of the cases which were cited to me concerned the question as to whether frontagers of streets or roads were obliged to contribute towards the cost of maintaining them. In some of the cases surprising results were achieved as a result of strictly interpreting the statutory definition. In Coverdale v. Charlton ⁽³⁾ Cockburn, C.J. said at page 377:

"It is certainly rather surprising to find under the term 'urban district' may be included an area of a thoroughlyrural character, such as this appears to be, and that under the term 'street' a green lane may be included. But it appears to have pleased the legislature so to enact. Looking to the terms of the 149th section, read by the light of the 4th section of the Act, I can only come to the conclusion that this lane was a highway vested in the local board."

In Bells and Sons v. Great Crosby Urban District Council ⁽⁴⁾ another Divisional Court held that an area adjoining the road which had been asphalted over formed part of a street. However the most helpful case is Warwickshire County Council v. Adkins and Others ⁽⁵⁾.   Here Lord Parker considered the problem of the status of land adjoining a partly made up road. In general terms he concluded that the issue which had to be considered was whether the land immediately adjoining the road had been taken over or adopted by the owners of land in the area. At page 493 he said:

"Mr. Fletcher says, secondly, that if they had properly applied their minds to the evidence here they must have found that this strip of land had been thrown into, and at the relevant time formed part of the private street. He points to the fact that there was no physical barrier whatever between what was undoubtedly a private street and this strip; there is no demarcation other than that the surface is different. What is more, if you picture yourself as looking down Hatherell Road you will see a pace, partly surfaced partly not, which is bounded on both sides by walls or fences of houses. Anybody, he says, just looking at the geographical location would be bound to say the whole of this space between the walls of the gardens on the north and the gardens on the south is clearly a private street. He emphasises that by referring to certain findings of the justices which disclose that the unsurfaced strip is uncultivated and has no vegetation growing upon it.

7. In reply Mr. Kaplan emphasised the necessity of having regard to the true intention of the legislature. He referred to section 19 of the Interpretation and General Clauses Ordinance Cap. 1 which reads:

"An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

However this section has to also be read in the context of the contents of section 2 of the said Ordinance which provides that the Ordinance should apply save where a contrary intention appears. A contrary intention does appear in the definition of a "street" in the Buildings Ordinance. I regret that I am by no means convinced that it was the intention of the legislature to be as restrictive as was suggested by Mr. Kaplan in relation to the development of property. Mr. Kaplan also argued that the English cases which had been cited by Mr. Spence were of very little assistance to him as they all related to particular circumstances which existed in England and most of them were concerned with the question of ontagers of roads being required to make financial contribution towards the maintenance of the road. With respect I do not see any great merit in this argument. The cases I have referred to were concerned with the definition of the word "street" and I can see no reason why a "street" should be considered in a different way for different purposes. Mr. Kaplan also drew attention to the fact that the road was simply an access road to the Royal observatory and had not in any way been dedicated to the public. Again I do not think that this takes us much further. I am satisfied that the road is not an ''access road" within the definition contained in the Buildings Ordinance as the land is still vested in the Crown. Nothing turns upon whether the road has been dedicated.

8. I am satisfied that each case has to be considered on its own merits. I realise that if I find that the land immediately adjoining this road does form part of the road I will be going further than the Court of Appeal did in Mightystream Ltd. v. The Attorney General ^(1). Having regard to all of the facts which were before me and to all of the relevant law I have come to the conclusion that the land to the south of the road and a considerable part of the land to the north of the road should properly be regarded as forming part of the road or street. During the course of this judgment I have referred to this road as being a road. In view of the definition of a "street" in the Buildings Ordinance I do not see any objection to referring to it as being a road as the word "road" is included amongst the things which are a "street". While I accept that pedestrians would not normally use the verge in preference to the metal part of the road I do not think that it would be a completely unforeseeable eventuality that they would walk on the verge if there was traffic using the metal part of the road. Also the existence of the vegetation on particularly the south side of the road would not unduly impede the passage of pedestrians. Accordingly I am prepared to make the declaration which is sought. The plaintiff will be entitled to its costs.

(1)    (1982) H.K.L.R.56.

(2)    (1967) 65 L.G.R. 439.

(3)    (1878) 3 Q.B.D. 376.

(4)    (1913) 77 J.P. 37.

(5)    (1967) 66 L.G.R. 486.

Representation:

Mr. Malcom Spence, Q.C. and Mr. Kemal Bokhary (Slaughter & May) for Plaintiff.

Mr. Neil Kaplan, Q.C. and Mr. Neil Strawbridge (Legal Department) for Defendant.