Hui Sui Sam and Another v. Director of Public Works

LDMT000003/1982

Lands Tribunal - claim for compensation for additional cost of caisson piling required instead of conventional piling to avoid incompatibility of new building with proposed extension of Mass Transit Railway - preliminary issue whether property owners entitled to claim for compensation - whether compensation provisions of Ordinance retrospective - whether amendment of defective plans or express imposition of conditions a pre-requisite to claim - whether amendment to principal Ordinance extending stages of railway also retrospective - Sections 15, 17, 18 Mass Transit Railway (Land Resumption and Related Provisions) Ordinance, Cap. 276, Sections 2, 4 Mass Transit Railway (Land Resumption and Related Provisions) (Amendment) Ordinance No. 12/81.

IN THE LANDS TRIBUNAL OF HONG KONG

Mass Transit Reference No. 3 of 1982

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Coram: TRIBUNAL: His Honour Judge Cruden, sitting as President, Lands Tribunal.

Date: 15 August 1982

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JUDGMENT

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1. On the 11th day of June 1982 the applicants applied for compensation pursuant to the provisions of the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance, Cap. 276. In addition to that substantive application there was also an application under Section 19(2) for an extension of the time for serving the claim on the Director of Public Works.

2. I would observe that pursuant to a Resolution of the Legislative Council under Section 54A of the Interpretation and General Clauses Ordinance Cap. 1 passed on the 10th day of March 1982 and published as Legal Notice No. 76/82 on the 12th day of March 1982 in Volume CXXIV Hong Kong Gazette page B182, the title of the Director of Public Works was on the 1st day of April 1982 changed to the "Director of Engineering Development." However, as this application was commenced and entituled under his former title I will, for the purposes of this judgment, continue to refer to him under his former title as the Director of Public Works.

3. The claim was based on the right of compensation enacted under Section 18. In this particular case the period limited for commencing claims is that prescribed by the fourth column of Part I of the First Schedule to the Ordinance namely "before the expiration of 1 year from the completion of the building". It was undisputed that the building was completed by the date of the Permit to Occupy a New Building issued by the Building Authority pursuant to Section 21 of the Buildings Ordinance, Cap. 21. The Permit to Occupy was dated the 18th day of October 1978.

4. Section 19 expressly provides for claims to be made out of time. Section 19(4) is a very wide provision and provides that, apart from mistakes of fact or law, an extension may also be granted for any other reasonable cause or if the Crown is not materially prejudiced. Section 19(5) empowers the Tribunal to grant an extension of time for such period as it thinks fit but not in any case exceeding 6 years. The period of delay here of just under 3 years 8 months is well within the maximum of 6 years. The applicants base their claim for extension of time on a mistake of law, namely that they erroneously believed that only owners of land whose properties were resumed under the Ordinance were entitled to claim compensation. The Director of Public Works conceded that he had not suffered any material prejudice by the delay but objected to the application on the ground that on the substantial issue the claimant, as a matter of law, had no claim for compensation under the Ordinance.

5. After considering these submissions I determined that I should first rule on the time application. Section 19 gives the Tribunal a very wide discretion. Here the claim was well within the maximum period of extension of 6 years and I was satisfied that the Director of Public Works had suffered no material prejudice by the delay. The application for extension of time was therefore granted.

6. Both parties then mutually requested the Tribunal to consider as a preliminary issue whether the applicants, as a matter of law, had a claim under the Ordinance. In considering whether to dispose of that issue at a preliminary stage the Tribunal was conscious that at times there are disadvantages and even dangers in deciding issues at a preliminary stage for the reasons set out in Tilling v. Whiteman (1979) 2 W.L.R. 401. More recently our own Court of Appeal in Leung Chui-Ying v. Chow Sui-Kwan C. A. No. 38/82 has also cautioned a against too readily deciding to determine an issue separately at a preliminary hearing. After hearing both Counsels joint application I am just prepared to accept that this is a case where it may be expedient and desirable to consider the jurisdiction issue at this preliminary stage. Although, as will shortly appear, certain factual difficulties may arise.

7. In short the Crown submits that the Building Authority approved the applicant's plans before the Ordinance, creating a right to compensation was enacted. Further it was submitted that the Building Authority had never imposed any conditions on the applicant under Section 15 which, it was suggested, is a condition precedent to any right to compensation arising under Section 18. Finally, it was submitted that the applicants property is in any event situated in Stage 8 of the railway and properties within that stage only became entitled to compensation last year under the Mass Transit Railway (Land Resumption and Related Provisions) (Amendment) Ordinance No. 12/81 which was enacted 7 years after the principal Ordinance. So the applicants have three major obstacles to either overcome or circumvent. First, that the plans were approved before the Ordinance was enacted; secondly, quite apart from any issue of retrospectivity, no conditions were ever expressly imposed on the applicants under Section 15 which it is submitted is a prerequisite before any right to compensation arises; thirdly, that the building was completed before the railway was extended to include stage 8.

8. The applicants submit that both the Ordinance and the 1981 Amendment are retrospective. Further, that the Building Authority can exercise his powers under the Ordinance without necessarily having expressly to impose conditions under Section 15.

9. Before going on to consider these submissions it may be helpful, on an issue where dates are so important, if I set out in chronological order, the more important events that occurred. In doing so it is necessary for certain assumptions or findings of fact to be made. The evidence at this preliminary state was limited to two affidavits filed on behalf of the applicants and one affidavit filed on behalf of the Director of Public Works. Any findings of fact I make at this stage will therefore be limited at most to prima facie findings. It may be that after hearing further evidence, if the application should proceed to a substantive hearing, that final findings of fact may differ from any assumptions or findings now made. For, as commonly occurs when considering a preliminary issue separately, I am obliged to assume that all the applicants allegations of fact will be established at the hearing subject to any contrary findings I may be able to make from the affidavits filed. If any final findings do vary from any present assumptions or findings I appreciate too, that different legal consequences may then follow. Subject to these important reservations I will attempt to summarise the material events up to the present:

1. The applicants are the owners of the property known as No. 184 -186 Wing Lok Street, Central, Hong Kong.

2. In 1972 the applicants authorised architect who was instructed to draw up plans for a new building on the property, commenced correspondence with the Building Authority in relation to the consent of the Director of Public Works, in his capacity as the Building Authority, to the proposed plans.

3. On the 26th day of January 1972 the Director of to Works wrote o the authorised architect in relation to certain proposed reading improvements which would affect the applicants property and also pointed out:

"4. The lots are also affected by  Mass Transit and you will be addressed further on this matter as soon as the matter has been fully investigated."

4. On the 21st day of March 1972 the Director of Public Works wrote to the authorised architect informing him that when the redevelopment plans were submitted to the Building Authority provision would have to be made for a set-back of the new building to the new road line and that after the plans were approved by the Building Authority compensation would be considered for that part of the property acquired by the Crown for road widening. The letter also went on to conclude:

"The approximate route of the proposed Mass Transit Scheme is shown on the plan and you should consult the Principal Government Highway Engineer regarding acceptable building foundations for the redevelopment of the lots."

5. On the 27th day of March 1972 the Director of Public Works wrote to the authorised architect, in reply to a letter from the authorised architect, in these terms:

"Thank you for your letter dated the 13th March 1972 in which you seek confirmation concerning the effect of the Mass Transit Proposal on your redevelopment proposal.

I am now in a position to advise you that redevelopment of the above lots may proceed, provided that no building foundations are within 3 ft. of the Mass Transit inner reserves, and provided all building foundations adjacent to the Mass Transit Railway Structures are taken down to at least 61 ft. below ground level, and are to the satisfaction of the Government High-way Engineer/Mass Transit."

6. On the 17th day of May 1972 the Director of Public Works in his capacity as the Building Authority refused to approve the proposed plans on the sole ground that the site dimension adjoining No. 182 Wing Lok Street should have read 67.65 ft. Building (Administration) Regulation 7. It may be noted that this sole ground of refusal not only sets out the technical basis on which the refusal was based but also expressly cites the Regulation under which the Building Authority had the power of refusal. However, the Building Authority after setting out the ground and authority for its refusal goes on in its letter to state:

"3. Please note that no building foundations will be permitted within 3 ft. of the Mass Transit inner reserves and that all building foundations adjacent to the Mass Transit Railway structures have to be taken down to at least 61 ft. below ground level, all the satisfaction of the Government Highway Engineer/Mass Transit."

7. That because of the Mass Transit proposed development the authorised architect was unable to use conventional piling which would otherwise have been suitable and have complied with the Building Authority's lawful requirements. Instead, for this sole reason, a caisson piling system was adopted which was more expensive. It is because of this alleged increased expense that compensation is now sought.

8. On the 5th day of July 1974 the Mass Transit Railway (Land Resumption and Relayed Provisions) Bill 1974 was published.

9. On the 6th day of August 1974 the Building Authority approved the caisson piling plans purportedly pursuant to Section 14 of the Buildings Ordinance, Cap. 123.

10. On the 23rd day of August 1974 the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance, Cap. 276 was enacted.

11. On the 19th day of February 1976 the piling work commenced.

12. On the 18th day of October 1978 the Building Authority issued the Permit to Occupy the completed new building pursuant to Section 21 of the Buildings Ordinance.

13. On the 13th day of February 1981 the Mass Transit Railway (Land Resumption and Related Provisions) (Amendment) Ordinance No. 12/81 was enacted. This Amendment, inter alia, amended the statutory defined stages of the railway under Section 2 of the principal Ordinance by extending them to include Stage 8.

14. The applicants property is affected only by Stage 8 of the railway.

10. The respondent in these proceedings, as I have already observed, is the Director of Public Works. The foregoing correspondence to the authorised architect was signed by various civil servants under a variety of nomenclatures including Building Authority; Chief Engineer, Highways/ Hong Kong; Director of Lands and Survey; Government Mass Transit Engineer. I am satisfied that all those signatories were exercising the statutory powers of the Director of Public Works delegated or otherwise. At the material time Section 2 of the Buildings Ordinance provided that "'Building Authority" means the Director of Public Works.' All the other correspondence was from offices which form part of the Public Works Department and most of the letters were entituled as being from those offices of the "Public Works Department". Whether those letters were written under delegated authority or otherwise, they all bind the Director of Public Works.

11. Clearly when the plans were approved on the 6th day of August 1974 the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance had not been enacted. It was enacted 17 days later. At that time none of the conditions of that approval could therefore have been imposed pursuant to the Ordinance and in particular none could have been imposed under Section 15.

12. Counsel for the Director of Public Works submitted that they were imposed pursuant to the Director's statutory powers under the Buildings Ordinance. Certainly the approval of the plans was purportedly under the Buildings Ordinance. Did the Director have power under that Ordinance to require the particular piling plan to be designed because of the proposed Mass Transit development? If the Director did have such power under the Buildings Ordinance then that may well be fatal to the applicants claim. Section 14 of the Buildings Ordinance empowers the Director, in his capacity as the Building Authority, to approve plans and consent to the commencement of building works. Section 16 goes on to list, in considerable detail, 31 circumstances in which he may refuse to grant his approval or consent. None of those circumstances expressly includes a proposed Mass Transit development or similar work. Section 16(1)(m) concerns piling work but approval may only be refused where the proposed piling work would cause or be likely to cause a collapse of any other building, street or land. On the assumptions and prima facie facts already found, there is no suggestion that the different piling plan required was because of any of these dangers. Rather it was specifically to facilitate the later construction of the Mass Transit Railway. Section 17 sets out conditions the Building Authority may impose in certain cases. Counsel for the Director of Public Works submitted that the piling requirements were imposed under Item 7 of Columns A and B of Section 17(1). However, Item 7 is limited to prescribing conditions to prevent the same kind of collapse or dangers as are set out in Section 16(1)(m). Again this provision is not wide enough to include other grounds relating to the development of the Mass Transit Railway which I have found necessitated the adoption of the more complex piling plan.

13. The Tribunal enquired whether there were any other provisions in the Buildings Ordinance or elsewhere under which before the 23rd day of August 1974 the Building Authority could have required this particular piling plan to be adopted. Counsel for the Director of Public Works was unable to refer to any other provision. It seems that there are none. What appears to have occurred is that the Building Authority drew the authorised architect's attention to the Mass Transit Railway development and requested him to design a piling plan to comply with certain stipulated conditions which only arose because of that proposed development. The authorised architect then designed a piling plan which but for those conditions would not have been designed. This no doubt appeared to the Building Authority to be a reasonable procedure for it avoided complications arising later when the Mass Transit Railway construction commenced.

14. However, it seems that the Building Authority had no statutory power to impose those conditions when on the 6th day of August 1974 the plans were approved. However, the Mass Transit Railway (Land Resumption and Related Provisions) Bill 1974 had already been drafted and published, being gazetted on the 5th day of July 1974, as part of the Legal Supplement No. 3 to No. 27 Hong Kong Gazette volume CXVI. In those circumstances the conditions imposed no doubt appeared to the Building Authority to be not only sensible but reasonable. Particularly as the new Ordinance, then about to be enacted, contained express power under Section 15 to impose those conditions and as a just and reasonable corollory there were provisions for affected parties suffering loss to receive compensation.

15. The applicants submitted that the new Ordinance was retrospective. The Director of Public Works submitted that the Ordinance was not retrospective. Counsel for the Director cited an extract from Craies Statute Law (7th Edition) at page 387 on retrospective legialation. Counsel for the applicant relied on the same passage from Craies to support her submission that the Ordinance is retrospective. In fact the extract cited directly supports neither parties submission. For it merely defines the meaning of "retrospective".

16. The rule of law is well settled that generally statutes are not retrospective. Whether am Ordinance is retrospective depends if the presumption against retrospectivety has been rebutted. This important issue is dealt with Craiss at a later stage, namely from page 391. The presumption may be rebutted either by express enactment or by necessary implication from the language used - Craies page 392, 36 Halsbury (3rd Edition) 423. There is no express provision in the Ordinance that it is retrospective so it can only be retrospective by necessary implication.

17. As to whether an Ordinance is by necessary implication retros-pective, the general rule is that it should not be held to be retrospective except of necessity. Where the question is whether an Ordinance is by necessary implication retrospective Craies, at page 392, summarises the proper approach in these terms:

Whether the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance must of necessity be construed retrospectively poses an interesting question. Certainly in relation to piling and other works it interferes for the public benefit with existing private rights, creates new obligations and imposes new duties. Where an Ordinance interferes for the public benefit with private rights, usually as a corellary, it provides for compensation. This Ordinance does so. On the other hand there are also contrary indications that the Ordinance is not retrospective. For example there is no express power in the Ordinance to interfere with private rights before the 23rd day of August 1974. If that power was intended to be retrospective potentially it would have had major repercussions. If that had been the Legislature's intention it is reasonable to infer that it would have expressly provided for such far reaching consequences.

18. In view of the special circumstances of this application, however, it seems unnecessary, at this preliminary stage, to determine whether the principal Ordinance is retrospective beyond the date of its enactment, namely the 23rd day of August 1974. Because of these special circumstances, it seems to me to matter not, whether the Ordinance has retrospective effect before the 23rd day of August 1974. For assuming - without deciding - that the principal Ordinance is not retrospective beyond the 23rd day of August 1974, does not appear materially to affect the applicants position on their present application for compensation. The special circumstances I have already referred to include the fact that prior to the 23rd day of August 1974 the Building Authority purported to impose conditions in relation to piling which he was then not legally empowered to impose. However, the piling works were not commenced until the 19th day of February 1976. By that date the Building Authority was invested, under the new Ordinance, with the lawful power, which he had previously lacked, to impose such piling conditions. Indeed, he had possessed those powers for nearly 18 months before the piling work actually commenced. When the piling work so commenced it proceeded and was completed in strict accordance with plans designed to avoid any incompatability with the proposed Mass Transit Railway works.

19. Clearly after the 23rd day of August 1974 if the applicants had elected, as they undisputably did, to proceed with the piling then-whatever was the position previously - thereafter the piling works were subject to the Building Authority's power to lawfully enforce those conditions under the new Ordinance. In particular the piling works from the date of their commencement were subject to the provisions of Section 15. Alternatively, if at any time during that 18 month period before the piling was commenced, but after the 23rd day of August 1974, the applicants had declined to proceed with the piling in accordance with those plans, designed to avoid incompatability, the Building Authority could have compelled compliance by invoking the statutory powers created by Section 15.

20. On this approach it matters not that the conditions purported to be imposed on the 6th day of August 1974 were not then within the Building Authority's statatutory powers. As to the nature of the Building Authority's approval on that date, to the extent that they related to the piling warns, the purported conditions were at moot requests. If the piling works had commenced or been completed before the 23rd day of August 1974 an interesting question may have arisen whether the applicants had without any Lawful obligation, voluntarily designed their piling plan to avoid incompatibility. On the special facts of this case that question does not arise. For whether previously they were mere requests or other wise they became enforceable conditions, on the part of the Building Authority, when on the 23rd day of August 1974 the new Ordinance was enacted.

21. I also take into account that the Building Authority's powers under the Mass Transit Railway (Lands Resumption and Related Provisions) Ordinance, like his powers under his principal Ordinance in respect of other new works, are continuing powers, which exist from day to day until the particular works or buildings are completed and an Occupation Permit duly issued. For example the Building Authority's continuing powers under the Buildings Ordinance are to be found in Sections 21(6) and 23 thereof. Section 21 provides that no new building shall be Occupation until the Building Authority has issued an Occupation Permit. Under Sub-section 6 the Building Authority may refuse to issue an Occupation Permit if any part of the new building has been constructed in contravention of, inter alia, the approved plans. Section 23 goes further and empowers the Building Authority to order any contravening works to cease. So the Building Authority's powers and jurisdiction over a new building extends from the time the plans are initially approved until the building is completed in accordance with those plans and the Occupation Permit is issued.

22. Section 15 of the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance gives the Building Authority additional but similar powers to control plans and works which may affect the construction and operation of the Mass Transit Railway. Section 15 includes the additional power not only to refuse to approve plans but also to withdraw any prior approvals or consents. The withdrawal power relates not only to prior approvals under the same Ordinance but also to prior approvals under the Buildings Ordinance. That far reaching power is certainly retrospective in the widest sense.

23. Accordingly if the Building Authority had on the 6th day of August 1974, when it approved the applicant plans, not exceeded its legal powers and merely required a conventional piling plan, it could have, on or after the 23rd day of August 1974, pursuant to Section 15(1)(b) of the new Ordinance, withdrawn that prior approval and required an amended piling plan compatible with the Mass Transit Railway proposed works. As the applicants did not commence piling until nearly 2 years after the Building Authority obtained these additional powers those would have been, as a matter of practicality, ample opportunity for the Building Authority to have withdrawn any prior consent it may have given to merely a conventional piling plan and imposed conditions requiring a caisson piling plan. For all these reasons I am well satisfied that the piling works were, from the 23rd day of August 1974 - thus well before the date of their actual commencement - subject to all of the Building Authority's powers under Section 15.

24. The next question to determine is whether it was possible for the Building Authority to exercise those powers without having expressly to invoke or impose conditions pursuant to Section 15? Counsel for the Director of Public Works submitted that before those powers can be exercised and a consequential right to compensation arise, defective plans must first be presented to the Building Authority. The Building Authority would then have to require amendments or impose conditions under Section 15(1)(c). The applicants submit, to the contrary, that the Building Authority can equally and alternatively exercise those powers without having to have recourse to the formal steps under Section 15(1)(c).

25. If for example, an experienced and meticulous authorised architect or engineer with prior knowledge of the Building Authority's requirements, or after correspondence or informal communications with the Building Authority, designs his initial plans to comply fully with those requirements those plans, the applicants would claim, have equally been prepared in compliance with the Building Authority's requirements, Indeed, the applicant submits that in the public interest, as well as in the interests of the parties, this is the better procedure.

26. On the evidence so far before the Tribunal, the Building Authority, in the exercise of its general jurisdiction, seems not only to approve of but to encourage this practice. I refer to the affidavit filed herein by the Director of Public Works to which a letter from the Building Authority is annexed as Exhibit FD1. The letter is from the Building Authority to the applicant's authorised architect in relation to the proposed redevelopment of the applicants property which is the subject of the present application. The letter appears to follow a standard printed form and includes these paragraphs:

"

I refer to your application dated 9.4.74 and received by this office on 18.4.74 for approval of proposals. It is the usual practice in the Buildings Ordinance Office for all submissions to be checked carefully to ensure that contraventions of the Buildings Ordinance and Regulations are not present and that from other aspects where the public interest is involved, the proposals are viable. However, the pressure of work in the Buildings Ordinance Office delays continuing to affect all submissions to the B.O.O. Therefore, your application has been checked on the basis of certain elementary checks only but this elementary checking has disclosed that (please see overleaf) and your proposal therefore is disapproved. This curtailment of the usual range of checks emphasizes your duties and responsibilities as Authorised Architect and I must stress the importance the Building Authority attaches to the proper assumption of responsibility by Authorised Architects. It is the self-evident that any alteration to a building during erection or on completion, costs money and causes delays. Where the Building Authority is of the opinion that an Authorised Architect has failed in his duty appropriate action will be taken. Please ensure, therefore, that a re-submission complies fully with the Buildings Ordinance and Regulations, and that all relevant information is attached."

27. The Building Authority in that letter certainly encourages authorised architects to ensure that their initial plans do not contain contraventions and does not encourage them to submit defective plans.

28. I am satisfied that the applicants, through their authorised architect, prior to submitting the piling plan, ascertained informally from the Building Authority the special design features which were solely necessary to avoid incompatability with the Mass Transit Railway proposed works. Those plans were not only purportedly approved on the 6th day of August 1974 but by reason of those steps it was not necessary for the Building Authority on or after the 23rd day of August 1974 to invoke his powers under Section 15 either before or after the piling commenced on the 19th day of February 1976.

29. Where due to prior communications between a property owner and the Building Authority compatible plans are produced without the necessity of the Building Authority having expressly to invoke his statutory powers, it seems in principle that such an owner's rights should not thereby be prejudiced as against another owner whose first plans are defective whether due to lack of co-operation, skill, neglect or other reasons. As to an owner's right to compensation it should matter not whether the compatability of a plan was achieved voluntarily or whether due to a failure to comply or for any other reason it became necessary for the Building Authority to fall back on his statutory powers under Section 15(1)(b). Certainly if any distinction is to be made between two such property owners it should not be adverse to the owner who initially takes the trouble to have compatible plans prepared. Equally where a reasonable and conscientious property owner in anticipation of the new Ordinance altered his plans to ensure their compatability with the proposed Mass Transit Railway proposed works, that should not be a reason to deprive him of a subsequent right to compensation unless the legislative provisions are very clear to the contrary.

30. I return to the narrower question whether a right to compensation arises where compatible plans are initially tendered to the Building Authority. The Legislature surely would not have intended that a person who from the beginning ensured that compatible plans were prepared, would not be entitled to compensation, while a defaulting owner in respect of whose defective plans conditions had to be imposed to remedy the defects, would be entitled to compensation.

31. I recognise that the relevant statutory provisions, if narrowly construed, could produce this result. However, in Hong Kong Courts both our common law and our statute law discourage such a narrow approach. Under Section 19 of the Interpretation and General Clauses Ordinance, Cap. 1 we are directed by the legislature to apply "such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance ….." At common law, at least as a result of a series of English Court of Appeal and House of Lords decisions, we are now enjoined to adopt a "purposive approach" to statutory interpretation. For the purpose of understanding the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance I am prepared to accept that those common law and statutory principles are merely alternative ways of describing the same approach. I have construed the Ordinance in accordance with those principles. Such a construction strengthens my conclusion that a property owner's right to claim compensation is the same whether he has made alterations to ensure that his initially tendered plans are compatible or whether he first tenders defective plans as a consequence of which the Building Authority is obliged expressly to exercise his powers under Section 15 in order to require amendments or impose conditions to achieve the same compatioility.

32. This brings me to the final question which, like the first, involves the issue of retrospectivity. It arises from the fact that the applicants property was affected only by that portion of the railway described in Section 2 of the Ordinance as Stage 8. The definition of the various stages of the railway in Section 2 and also Item 12 of Part I of the First Schedule to the Ordinance, which deals with compensation for piling, were both extended to include Stage 8 only as recently as the 12th day of February 1981 pursuant to the Mass Transit Railway (Land Resumption and Related Provisions)(Amendment) Ordinance, No. 1E/81.

33. Was the 1981 Amendment retrospective? If it were not, then notwithstanding the earlier favourable conclusions on other questions, the applicants would have no claim for compensation. If it were retrospective, the applicants do have the right to claim compensation. This retrospective issue is different and more limited to that considered earlier. For here I am only concerned with whether an amendment to the principal Ordinance is retrospective to the date that Ordinance first came into effect, namely the 23rd day of August 1974.

34. Counsel for the Director of Public Works cites the same extract from Craies which he had already referred to in respect of the principal Ordinance, in support of his submission that the 1981 Amendment is also not retrospective. Counsel for the applicant relies on the same extract to support her submission that the Amendment is retrospective.

35. While that citation is of background assistance the more relevant extract from Craies is that already referred to at page 10 of this judgment when the retrospectivity of the principal Ordinance was considered. The principles therein summarised are equally relevant in the case of the Amendment and I again take them fully into account. Further and more direct help in determining whether the 1981 Amendment was retrospective may be obtained by reference to the relevant provisions of the principal Ordinance itself. Turning to the principal Ordinance I accept that Section 2 thereof is merely a defining and not an empowering section. In Section 2 the railway is defined as:

36. Significantly there is no limitation in that definition to the several stages of the railway's actual development. Further the definition expressly includes any "extension" of the railway not only planned but also "intended" as part of the Government's "policy". It is difficult to envisage any wider definition. Certainly it is exceptional for a statutory definition to include any future developments which may occur in pursuance of such a flexible, discretionary, if not unruly, animal as Government "policy".

37. Later in Section 2 certain stages of the railway are defined:

38. The principal Ordinance originally merely included in Section 2 a reference to Stages 1 to 4. Stage 6 was added in 1978 by the Mass Transit Railway (Land Resumption and Related Provisions)(Amendment) Ordinance No. 66/78 while Stage 8 was added by the 1981 Amendment.

39. Proceeding to the substantive provisions of the principal Ordinance, Section 15, as I have already observed, is the important Section which empowers the Building Authority to approve or reject plans or impose conditions with the following Sections 17 and 18 providing consequential rights to compensation.

40. Section 15 is not expressly limited to controlling the progressive stages of the railway development but is very widely expressed. The Building Authority's powers under Section 15(1) to refuse approval, withdraw approval, require amendments or impose conditions, relates to any work which:

"

...would be incompatible with any work or proposed or likely works for the construction, main tenance or improvement of the railway..."

There is no reference or limitation in Section 15(1) to the statutory stages as defined in Section 2. The Section is also not only concerned with the widely defined "railway" as distinct from the statutory stages, but also extends to include even "proposed" or "likely" works.

41. Section 18 details the rights to compensation created by Section 17. Section 18 provides that a claimant shall be entitled to compensation:

"

...to the extent of the loss damage or cost suffered or incurred by him…"

That right to compensation, as to quantum, is unlimited. No statutory maxima or other restrictions have been prescribed. The only limitation is that compensation is restricted to certain "Items" of loss damage or cost set out in the first column of Part I of the First Schedule to the principal Ordinance and are to be assessed on the basis specified in the second column thereof.

42. Part I of the First Schedule comprises 12 separate Items. Items 1 to 10 (inclusive) refer to various losses arising from the development of the railway but none are expressly limited or tied to any of the statutory stages. Only Items 11 and 12 contain any express reference to those statutory stages. This claim is founded on the right to claim compensation for the loss damage or cost set out in Item 12. The first column of Item 12 particularises the losses for which compensation may be claimed thereunder as:

"

The cost of complying with a plan amended, or a condition imposed under Section 15(1)(c), in a case where the plan shows piling works, excavation works or foundation works, to avoid incompatibility of such works with works or proposed or likely works for the construction of stages 1 to 6 and 8 of the railway."

43. Item 12 was amended to include Stage 8, as already indicated, on the 12th day of February, 1981. Clearly the present claim could not have been instituted before the 12th day of February 1981. The limitation period for the service of claims on the Director of Public Works is specified in the fourth column of Item 12 and claims must be served:

"

Before the expiration of 1 year from the completion of the building."

The building was completed on the 18th day of October 1978. However, that time limitation in the First Schedule poses no real problem in view of the very wide and liberal provisions enabling claims to be brought out of time up to a maximum of 6 years - Section 19. Those provisions well enable the present claim to be brought even though it was commenced out of time.

44. If the 1981 Amendment is retrospective what purpose does the statutory definition of the railway's stages and the inclusion of that term in Item 12 serve? If the use of the statutory definition of stages does not go so far as to prevent the Ordinance and its amendments from having retrospective effect, it does seem to have the lesser effect of controlling the time when payment of compensation is due. On this view the inclusion only in 1981 of the reference in Item 12 to Stage 8 at least prohibited the payment of compensation, in relation to otherwise incompatible Stage 8 works, before the 12th day of February, 1981. I note that as the railway has grown, so too have the statutory stages been extended.

45. After a consideration of the whole of the Ordinance I am satisfied that this staged drafting technique has not by itself prevented the two amendments adding new stages, from having retrospective effect. What has been achieved is that thereby the time for claiming compensation and making payment has been spread. Whether the various amendments progressively extending the stages of the railway were a method by which the Legislature elected to directly control the rate of the massive public expenditure by the Executive entailed in the construction of the railway, is not a matter which it necessary in this judgment to consider.

46. What I am satisfied is that the addition of Stage 8 to Item 12, even as recently as 1981, is not necessarily fatal to the applicants submission that the 1981 Amendment is retrospective.

47. Unfortunately, there is no direct authority on the retrospective effect, if any, of the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance or its amend eats and in particular the Mass Transit Railway (Land Resumption and Related Provisions)(Amendment) Ordinance No. 12/81. In the absence of any direct authority some assistance, if only by way of analogy, may be obtained from the recent Court of Appeal decision of Leung Chui-ying v. Chow Sui-kwan (Supra). The Court of Appeal considered the new power to award compensation under the Landlord and Tenant (Consolidation)(Amendment)(No. 2) Ordinance No. 76/81. In respect of the statutory right, given for the first time in favour of a tenant against his landlord under Section 53(2)(c) and 53A of the Landlord and Tenant (Consolidation) Ordinance, a retrospective question arose whether in the case of an action commenced before the Amendment but heard afterwards, the old or the new law applied at the hearing.

48. The Court of Appeal held that the Amendment was retrospective to the extent that the new law applied to the old action. That decision is of indirect importance to this case for at least two reasons. First, the Court of Appeal in holding the amendment to be retrospective placed most weight on the public importance of the Amendment stating further that it was of "great practical significance". Before that Amendment there was no statutory right to compensation. At most a tenant could hope for an ex gratia payment. Now he has a legal right to compensation. Secondly, less than 3 months earlier the Court of Appeal in Ngai Sau-ying v. Henry Chue Kwok-keung Civil Appeal No. 30/82 in respect of the preceding Clause of the same subsection - Section 53(2)(b) - had on the retrospective issue come to the contrary conclusion. The principal reason for its different ruling on Section 53(2)(c) was that the latter Clause, granting compensation for the first time was concerned with a matter affecting the public and was of great practical significance.

49. The Court of Appeal's decision in favour of retrospectivity may of course be distinguished. Certainly it was under a different Ordinance, on different facts; and is not binding in the instant case. However, that decision's fundamental principle remains highly relevant to this case. For here, as in that case, there are new provisions creating a right to compensation, in relation to an interest in land, where none existed before and where at most an affected party might obtain, at the discretion of the other party, an ex gratia payment.

50. So while the Court of Appeal decision is distinguishable it still dealt with similar concepts to those with which this Tribunal has to deal. Certainly where compensation exists for property rights arising out of redevelopment or otherwise, it is desirable, where possible, that common fundamental principles should consistently be applied. Otherwise unnecessary fragmentation of the law and needless confusion can too readily arise.

51. The basic scheme of the principal Ordinance is to invest the Building Authority with powers additional to those he enjoys under the Buildings Ordinance in order to facilitate, for the public benefit, the construction of the Mass Transit Railway. As a corollory to those powers the new Ordinance provides for compensation to be paid to persons who in terms of the Ordinance suffer loss as a result of the Building Authority's additional powers. For losses covered by Items 1 to 10 no problem of retrospectivity arises. Compensation is payable under the Ordinance irrespective which stage causes loss.

52. It is only in relation to Items 11 and 12 that any complication as to stages arises. I recognise that the introduction of the reference to stages in Items 11 and 12 may have created an ambiguity whether the subsequent amendment, adding Stages 6 and 8 respectively, are retrospective. In determining that question I again affirm that the proper interpretation of these provisions is achieved by applying a purposive approach coupled with the statutory direction contained in Section 19 of the Interpretation and General Clauses Ordinance to give our legislation a fair, large and liberal construction.

53. To the extent that there is any ambiguity then, following those principles, I have no hesitation in resolving any such ambiguity in favour of the 1981 Amendment being retrospective. After considering all these matters I am satisfied that the provisions of the 1981 Amendment are retrospective to the date of the enactment of the principal Ordinance, namely the 23rd day of August, 1974.

54. Accordingly I hold that the applicants, as a matter of law, do have the right to claim compensation in respect of their property affected by Stage 8.

DATED this 15th day of August, 1982.

Representation:

Miss Burgess of Gallant Y. T. Ho for claimant.

Mr. S.Y. Chan, Crown Counsel for Director of Public Works.