Re Ho King Kwan

HCMP000385/1986

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Headnote

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Judicial Review

The effect of compliance with a Notice issued under S.24(i) of C.123. Does the recipient of the Notice have any legitimate expectation that no further Notice will be issued in respect of the same non-compliance at a future date?

HELD. There is no such expectation. The Building Authority must exercise the discretion reposed in it according to the requirements of the ordinance. It cannot give any undertaking that it will waive the requirements of enforcing the Ordinance particularly where the contravention complained of may constitute a public hazard.

M.P. No. 385 of 1986

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Mayo in Court

Date of Hearing: 14th & 18th April, 1986

Date of Delivery of Judgment: 29th April, 1986

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JUDGMENT

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1. The Applicant is the occupant of a structure which has been erected on the roof-top of a 6-storeyed building in Aberdeen. In November 1984 the Building Authority served a notice on the Applicant's son who is and was the owner of a flat in the building beneath the structure I have referred to. The notice was issued pursuant to the provisions contained in Section 24(1) of the Building Ordinance Cap. 123 and it was stated that the structure constituted a contravention of Section 14(1) of the Ordinance and Regulation 41(1) of the Building (Planning) Regulations. The Applicant was required to demolish the structure, reinstate the building in accordance with the Building Authority approved plans, commence the necessary work within one month and complete it within two months. The Applicant is seeking the Judicial Review of the Building Authority's decision to issue this notice.

2. The Applicant is seeking an Order of Certiorari or alternatively a prohibition, a Mandamus, an Injunction or a Declaration to prevent the Building Authority from taking action to enforce compliance with the requirements of the said notice. The main ground in support of the Application is that a similar notice was issued in 1978 which was complied with to the satisfaction of the Building Authority in 1979.

3. It had been necessary for the Applicant to incur substantial expenditure in complying with the notice at that time. There had been a dialogue with the Building Authority which had inspected the work which had been undertaken to ensure that the structure did not constitute any hazard to life or limb. The Building Authority had been so satisfied and accordingly issued a certificate on 15th August 1979 which stated that the necessary work had been done to the satisfaction of the Authority.

4. In this connection it is worth observing that it is common ground between the parties that at all relevant times it has been Government's policy not to enforce contraventions of Regulation 41 unless the illegal structure constituted a hazard to life or limb. In an affirmation made on 24th March 1986, Mr. CHENG Wei-dart, a Government Building Surveyor, justified this policy on the grounds of the non availability of manpower resources to inspect buildings. He went on to say that there were now sufficient extra resources to enforce the Regulations more vigourously and that he was satisfied that the structure may constitute a fire hazard. The parties were also able to agree on the basis of Mr Justice Silke's judgment in Quebostock Ltd. v. The Building Authority & Others⁽¹⁾ that enforcement of the Regulations by the Building Authority was discretionary. Mr. Bernacchi, who represented the Applicant, submitted that the discretion had been wrongly exercised as it was grossly unfair and was an abuse of the process of Court to issue further proceedings after there had been compliance with a previous notice. He went on to submit that the notice was oppressive and unreasonable and should be set aside.

5. In support of this Mr Bernacchi agrued that it must be a simple question of fact whether or not the structure constituted a fire hazard. It was clear from the affidavit evidence available that no issue had been taken on the Applicant's affirmation that the structure was now substantially identical to its state and condition when the Building Authority had certified that the requirements of the previous notice had been duly complied with. In the absence of any evidence to the contrary it must be assumed that the Building Authority would not have certified compliance with the requirements unless they had satisfied themselves that no fire hazard existed. The evidence given by Mr Cheng to the contrary was vague and unsatisfactory. It could not be reconciled with the inference which could validly be drawn from the previous certificate of compliance. He went further and argued that the certificate amounted to an undertaking that once there had been compliance with the notice no further enforcement action would be taken. Mr Bernacchi referred to R. v. Liverpool Corporation⁽²⁾ as authority for the proposition that where a statutory body had given an undertaking which had been relied upon it was not open to it to renege from the terms of the undertaking. At the very least, the Applicant had a legitimate expectation that no further enforcement action would be taken against him. The Building Authorities disregard of such an expectation amounted to unfairness.

6. While I have considerable sympathy for the Applicant I do not think that there is any validity in Mr Bernacchi's contentions. An appeal procedure is laid down in the legislation. The Applicant did not see fit to lodge an appeal against the Building Authority's decision to issue the said notice. This being the case it is not appropriate for me on a Judicial Review to act as a Court of Appeal. It would be wrong for me to attempt to usurp the function of the Appeal Tribunal. Chief Constable of North Wales Police v. Evans⁽³⁾. The consequence of this is to limit the scope of this Judicial Review to the type of irrational decision referred to in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation⁽⁴⁾. This type of irrational conduct was referred to in C.C.S.U. v. Minister for Civil Service⁽⁵⁾.

7. I do not for one moment consider that the Building Authority's exercise of their discretion amounts to such irrationality. I am satisfied that the discretion which is exercised under Section 24 is a limited discretion. One of the main purposes of the Building Ordinance is to make provision for the rendering safe of dangerous buildings and land and to make provision for matters connected therewith. I have no doubt whatever that the Building Authority has no power to undertake or agree not to enforce Regulations made under the Ordinance particularly where such _ Regulations are designed for the protection of members of the public. Equally I have no doubt that the letter of compliance which was issued in connection with the 1978 contravention fell far short of being an undertaking or agreement that no enforcement action would be taken in the future. I am satisfied that this Judicial Review cannot succeed on its merits.

8. There is another matter which I must refer to. Mr Burdett for the Crown submitted that there had been undue delay and that the application should be dismissed on this ground pursuant to the provisions contained in Order 53 rule 4(1)(b). It will be noted that approximately 15 months elapsed from the issuance of the notice to the lodging of the application for leave to be given for the Judicial Review. Mr Bernacchi attempted to justify the delay which had occurred. There had been an exchange of correspondence between the Applicant's solicitors and the Building Authority when their attention had been drawn to the earlier notice which had been issued. The next thing which happened was the Building Authority applied to District Judge Roy for a Closure Order in November 1985. The Judge made such an order and the Applicant then applied to me for leave to judicially review District Judge Roy's order. I declined to grant leave and an appeal was lodged against my refusal. The Court of Appeal dismissed the appeal on the ground that if any order was amenable to judicial review it was the order of the Building Authority rather than the order of District Judge Roy. It was only after the Court of Appeal dismissed the appeal. ' that the present application was lodged. I regret that I do not consider that the delay which has occurred has been justified. The Applicant was legally represented shortly after the notice was issued and it should have been obvious to the Applicant's legal advisers that the matter must be dealt with timeously. Many months passed without any effective action being taken. I do not think that there was any excuse for the mistake in attempting to judicially review District Judge Roy's Closure Order rather than attacking the decision of the Building Authority. As I have said the delay which has occurred has not been justified. In my view the delay which has occurred is fatal and this application should be dismissed on this ground alone. I will hear the parties on costs.

(1) (unreported) Civil Appeal No. 102 of 1985

(2) [1972] 2 Q.B. 299

(3) [1982] 1 W.L.R. 115 P.1173

(4) [1948] 1 K.B. 223

(5) [1985] A.C. 374

Representation:

Mr. Brook Bernacchi, Q.C. & Mr. Patrick Woo inst'd by Arthur Au & Co. for Applicant

Mr. John Burdett, Senior Crown Counsel for Respondent