Re Tai Tung Industrial Equipment Ltd.

HCMP002262/1994

HCMP No. 2262 of 1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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TAI TUNG INDUSTRIAL EQUIPMENT LIMITED Applicant

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Coram: The Hon. Mr. Justice Mayo in Court

Dates of hearing: 6 and 7 December 1994

Date of delivery of judgment: 7 December 1994

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J U D G M E N T

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1. This is an application for judicial review. The Applicant is the Crown lessee of land at Tsing Yi Island. They conduct a business there of manufacturing and assembling heavy machinery. It is a matter of importance to them that they should have marine access to the land for the purpose of transportation of heavy machinery to and from their land.

2. By virtue of the terms of the Crown lease they are entitled to marine access to their land. However this access will be lost as a consequence of the Government reclaiming part of the foreshore and sea bed in connection with the reclamation for the Container Terminal no. 9 project.

3. Realising that it would be open to them to apply to the Crown for compensation under the Foreshore & Sea-bed Reclamation Ordinance C. 127 they engaged the services of a firm of chartered surveyors Messrs Brooke Hillier Parker (BHP) to represent them in seeking such compensation.

4. BHP were at the same time representing an adjoining owner Outboard Marine Corporation (OMC) who were endeavouring to also obtain compensation under the ordinance.

5. It is evident from the fairly voluminous correspondence exhibited to the affidavits filed that the approach adopted by BHP to negotiating with the District Land Office was to attempt to deal with the question of compensation together with a proposal to modify the terms of the Crown lease so as to extend the scope of the user of the land.

6. In any event that was the approach adopted for the negotiations between OMC and the District Land Office.

7. There is however one significant difference between the negotiations conducted by BHP for the Applicant and for OMC. In the latter case OMC initially lodged an objection to the proposals pursuant to Section 6 of the Ordinance thus entitling them to be served with the notice referred to the Section 9. No objection was lodged by the Applicant. This being the case no notice was ever served upon the Applicant.

8. On the 20th November 1992 His Excellency the Governor in Council's authorisation of the reclamation was gazetted and this is deemed to be good service on all interested parties unless they have lodged an objection under Section 6. In this event they are required to be served with the notice.

9. Although OMC continued to negotiate in the manner I have described they did tender a claim within the prescribed time under Section 12.

10. Section 12 is in these terms:

"12. Claims for compensation

(1) Any person who claims that his interest, right or easement in or over such foreshore and sea- bed will be injuriously affected by the reclamation may deliver to the Director a written claim stating the sum of money which he is willing to accept in full and final settlement of his claim together with such particulars as he may possess to substantiate the claim and shall furnish to the Director such accounts, documents and further particulars as the Director may request him to furnish, in support of the claim.

(2) A claim under subsection (1) shall be made before the expiry of the time specified in the notice served by the Director and published under section (9) in respect of the reclamation.

(3) Where any costs or remuneration are reasonably incurred or paid by a claimant in employing persons to act in a professional capacity in connexion with a claim under subsection (1), such claim may include a claim for such costs or remuneration. "

11. Perhaps as a result of their not being served individually with the Notice the Applicant did not specifically lodge a claim strictly complying with Section 12. They appear to have placed reliance upon the correspondence which was being exchanged with the District Office which I have above referred to.

12. On the 2nd December Ms. Daisy Wong, the Estate Surveyor seized of the matter for the Government filed an affirmation in which she denied any linkage between the correspondence for the modification of the Crown lease and the Applicant's claim for compensation. As a consequence of this she contented that the one year time limit referred to in Section 9(2)(c) had expired and that Applicant's claim for compensation was out of time.

13. This affirmation provided the rationale of the letter or decision which is the subject of this Judicial Review.

" Tel: 4021106 FAX NO. : 4150703

Our Ref: (216) in DLO/KT 170/KTPT/60 III

Your Ref: CNB/2d394

18 May 1994

Brooke Hillier Parker

Chartered Surveyors and

International Property Consultants

38/F., Sun Hung Kai Centre,

30 Harbour Road,

Hong Kong.

(Attn. Mr. C.N. Brooke)

Dear Sir,

Tsing Yi Town Lot No. 68

I refer to your letter of 2 March 1994.

The points raised have been considered and the position regarding the extinguishment of rights and the claiming of compensation under the Foreshore and Seabed (Reclamations) Ordinance, Cap. 127, is as follows :-

Upon publication of a notice of authorization in the Gazette, all rights in relation to the affected foreshore and sea-bed are extinguished in terms of S.10 of the Ordinance. On the statutory extinguishment of any such public or private rights, Section 11 of the Ordinance provides that the sole remedy for affected persons is to claim for compensation under Section 12 of the Ordinance.

The provisions of section 12 are summarised as follows :-

(1) Claims must be made in writing before the expiry of the time specified in the published notice of authorization (In this case the statutory period expired on 20.11.93);

(2) The claim should state the sum of money the claimant is willing to accept in full and final settlement of his claim together with such particulars as he may possess to substantiate the claim;

(3) The claimant is required to furnish to the Director such accounts documents and further particulars in support of the claim as the Director may request; and

(4) The claim may include any costs or remuneration reasonably incurred or paid by a claimant in employing persons to act in a professional capacity in connection with the claim.

The requirement under s.12 is that the claimant must make an application for compensation in writing and within the statutory period. The Ordinance however makes no reference to reservation as to right to claim compensation nor extension of time to make a claim. Notwithstanding that the Grantee may have reserved his right, such right should have been exercised within the statutory period of 12 months as stated in the notice of authorisation in the Gazette. It would therefore appear in this case that the Grantee's right to claim compensation has expired under the Ordinance, and your request for reservation of such right cannot be acceded to.

14. The relief sought by the Applicant is :-

"1. An Order of Mandamus to oblige the Director of Lands to consider the Applicant's claim for compensation pursuant to section 13 of the Foreshore and Sea-bed (Reclamations) Ordinance, Cap. 127.

2. A Declaration that the letter dated 2nd January 1992 and the letter dated 14th October 1992 from the Applicant's consultant, Brooke Hillier Parker, or either of those letters, constituted a claim within the meaning of section 12 of the Foreshore and Sea-bed (Reclamations) Ordinance, Cap. 127.

3. Alternatively, a Declaration that the Applicant is entitled to be treated as if the letter dated 2nd January 1992 and the letter dated 14th October 1992 from the Applicant's consultant, Brooke Hillier Parker, or either of them, constituted a claim within the meaning of section 12 of the Foreshore and Sea-bed (Reclamations) Ordinance, Cap. 127."

15. The main argument advanced by Mr. Ismail for the Applicant was that an application had in substance been made under Section 12.

16. It was necessary to have regard to the whole scheme of the legislation. It was clear that any owner of private rights to the foreshore or sea bed whose interests were adversely affected by a Reclamation exercise was entitled to claim compensation. It was not in dispute that the Applicant did have such rights and that they had been adversely affected by the proposed development of Container Terminal No. 9.

17. It was also not in dispute that correspondence had been exchanged between BHP on behalf of the Applicant with the District Office before the gazetting of the Notice to authorise the Reclamation.

18. The main letter relied upon was BHP's letter to the District Office dated the 2nd January 1992.

"Our Ref. CNB/6798	2nd January 1992
District Lands Office
Kwai Tsing
11/F Tsuen Wan Station Multi-storey
Carpark Building
174-208 Castle Peak Road
Tsuen Wan, N.T.
Attention : Mr. Andrew Fung
Dear Sir,

TYTL No. 68

Our Clients, Tai Tung Industrial Equipment Ltd., are the lessees of the above lot on which, since the original grant in 1977, they have established a very successful business focusing primarily on the manufacture and assembly of heavy machinery, machine tools and equipment, the production of which is housed in an eight storey building extending to 23,468 sq. metres gross floor area. The Company currently builds some 900 to 1,000 machines per year, employs 450 people and has a gross annual turnover in excess of HK$250M.

As a consequence of the proposal to reclaim the area immediately adjacent to our Clients' lot for purpose of construction of Terminal 9, on which a formal announcement is anticipated very shortly, our Clients' interests and business are likely to be adversely affected. In particular, the loss of marine access will necessitate a re-planning of the Company's operations, in that many of the large items of machinery are delivered or collected by sea and as a result of being deprived of this facility the Company will be faced with substantially increased costs especially in the manufacture of heavy and super-size machinery. Indeed, it may be necessary to consider relocating that part of the business to another location, if it is found that the alternative of road access is impractical, or at worst, unviable, and eventually the Company may have to give up the manufacture of such machines, having lost its competitive edge in the market.

As you will be aware, we are involved with a similar case immediately to the south of TYTL No. 68 where Government has indicated a willingness to compensate for the inconvenience and loss of marine rights through relaxation of the existing lease conditions and by permitting further development on the site upon payment of the appropriate premium. In this case also, our Clients would be interested to discuss a similar formula, but would wish Government to be aware that the alternative of monetary compensation is still a serious option so far as the Company is concerned and has not been ruled out.

We would therefore like to propose to Government that the parties enter into early discussion and that the negotiations be framed around the following parameters which our Clients believe are not unreasonable, given the potential impact on their business interests :-

(1) The existing Crown Lease formally be extended until 2047.

(2) The Plot Ratio permitted on the site be increased to 5:1, which based on the current site area of 12,000 sq. metres would result in a total gross floor area of 60,000 sq. metres. To date, some 23,468 sq. metres has been developed and the increased plot ratio would appear to comply with the general criteria set by the Town Planning Office for development in this area.

(3) The user provisions of the current lease be relaxed to permit general industrial and godown use. Given the limitations now placed on the site with the removal of sea access, it would be unfair in our view to restrict the use of any additional plot ratio to the manufacture, assembly and maintenance of machinery and industrial equipment. Similarly, in the case of the existing premises, our Clients are likely to have to restructure and widen the scope of their operations, given the loss of marine access and general industrial/godown user would provide them with the necessary flexibility in this regard.

(4) The restrictions on assignment, mortgage, charge, demise, underletting etc. be relaxed so as to enable our Clients to join with third party venturer/industrialists to maximise the development potential of the site. In this regard, our Clients are not developers, nor do they have the financial and technical resources that will be required and the present non- alienation clause would prevent them from bringing in partners, and ultimately, from disposing of any space that may be surplus to their operational requirements. Again, such relaxation would not appear unreasonable if our Clients are to access suitable partners and the necessary funds.

We would anticipate that there may be other issues which flow from this application, but we believe that if Government was able to see its way to meeting our Clients requirements in regard to the four main heads outlined above and the level of premium took due cognisance of the compensation that would otherwise have to be paid for the loss of marine rights, then there is every chance of reaching a negotiated settlement, acceptable to both sides.

We would welcome the opportunity to meet with you to discuss the matter further when you have had a chance to review the contents of this letter.

Yours faithfully,

	(Signed)
	C. N. Brooke
CNB/st/6798
c.c. Mr. Nigel Burley

19. No prescribed form is required by the legislation.

20. Mr. Ismail submitted that all that is required is that Section 12 should be complied with. The letter clearly indicates the basis upon which compensation will be claimed. The only deficiency was that BHP had not specifically stated the sum of money which they were willing to accept in full and final settlement of their claims. However they had attempted to deal with the question of the amount of compensation by proposing that the amount payable should be set off against the premium which would be payable by the applicant if the terms of the Crown lease were modified to extend this scope of the user of the land.

21. This District Office had at no time dissented from the proposal which had been put forward. It is true though that they had never agreed in terms that they were agreeable to this course being adopted. It was also true that they had agreed to a similar proposition which had been put forward by OMC.

22. What Mr. Ismail invited me to do was to consider the situation as a whole and that it would then emerge that in substance the Applicant had sufficiently formulated a claim for compensation such as to meet the requirements of Section 12. He contended the requirements for the claim being in writing and for being made within the time laid down were probably imperative requirements whereas the requirement to specify the amount which the Applicant would be prepared to accept as compensation was almost certainly only directive.

23. He reached this conclusion after analysing the wording adopted in the section and in other parts of the ordinance and by reference to other cases.

24. In particular he placed reliance upon a passage from the judgement of Lord Denning M.R. at p. 241 of Howard v. Environment Secretary 1975 IQB 235.

" The plaintiff's solicitors intended to comply with that letter. They prepared a letter dated November 16, 1970, which, if it had been posted in time, would have been within the specified period of 42 days. It was quite a long letter. In it they gave notice of the appeal. They set out the grounds of appeal in four items. They set out the facts on which the appeal was based in five items, including as one ground that the land had been used for 30 years for similar purposes. That letter would undoubtedly have been a good notice of appeal if it had reached the Ministry in time, that is, by November 18, 1970. But, unfortunately, it did not do so. Someone forgot to post it. Although it was dated November 16, it was not actually posted until November 20; and it did not get into the Ministry until November 24. Whereas the specified period had ended on November 18, 1970. And there is no power in anyone to extend the time.

Faced with this objection to the second letter, the plaintiff's solicitors reverted back to their previous letter of November 6 in which they said : "We would ask you kindly to accept this letter as formal notice of appeal." They submitted that this letter was sufficient to satisfy the statute: and that it was in time.

The contest is this: the plaintiff says that a simple letter saying that he "appeals" is sufficient so long as it is within the specified period. But the Minister says that an appeal, in order to be good, must comply with subsection (2), which says that an appeal "shall be made by notice in writing which shall indicate the grounds of the appeal and state the facts on which it is based."

The issue depends on whether that provision is imperative or directory. The distinction was explained by Lord Penzance in Howard v. Bodington (1877) 2 P.D. 203, 210:

"Now the distinction between matters that are directory and matters that are imperative is well known to us all in the common language of the courts at Westminster . . . A thing has been ordered by the legislature to be done. What is the consequence if it is not done? In the case of statutes that are said to be imperative, the courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the courts hold a provision to be mandatory or directory, they say that, although such provision may not have been complied with, the subsequent proceedings do not fail."

In applying that distinction, I must draw attention to a case which was decided on section 33 of the Caravan Sites and Control of Development Act 1960. That section was the predecessor to section 16 of the Act of 1968. It said [in subsection (4)] that an appeal shall be "by a written notice which shall indicate the grounds on which the appeal is brought." The case was Chelmsford Rural District Council v. Powell [1963] 1 W.L.R. 123. A written notice of appeal was given in due time. It set out two grounds of appeal. Neither ground was substantiated. But, before the hearing, the appellant (long after the time for appeal had expired) submitted a further ground of appeal. The Minister allowed this ground to be raised and he allowed the appeal. The local planning authority urged that the Minister ought not to have considered this further ground. They said that the section was imperative. But the Divisional Court ruled that it was not imperative, but only informative, that is, directory. So it was open to the appellant to go further into the further ground although it was out of time and had not been contained in the original notice.

I think that decision was perfectly correct. It is common practice in these appeals to allow new grounds of appeal to be added, and new facts to be stated. Very often the true facts do not emerge until the hearing by the inspector, and justice requires that new ground be added and new facts stated.

Although the decision is plain enough, Lord Parker C.J. made an observation which was not at all necessary for the decision. He said, at p. 131:

"I think it is quite clear that before the Minister can have any jurisdiction in the matter there must be an appeal. That appeal must be in writing, and it must indicate at any rate one of the grounds set out in paragraphs (a) to (g) of section 33(1). That, I think, is undoubtedly true."

I am afraid that Lord Parker C.J. there made a mistake. The section is no doubt imperative in that the notice of appeal must be in writing and must be made within the specified time. But I think it is only directory as to the contents. Take first the requirement as to the "grounds" of appeal. The section is either imperative in requiring " the grounds" to be indicated, or it is not. That must mean all or none. I cannot see any justification for the view that it is imperative as to one ground and not imperative as to the rest. If one was all that was necessary, an appellant would only have to put in one frivolous or hopeless ground and then amend later to add his real grounds. That would be a futile exercise. Then as to "stating the facts." It cannot be supposed that the appellant must at all costs state all the facts on which he bases his appeal. He has to state the facts, not the evidence: and the facts may depend on evidence yet to be obtained, and may not be fully or sufficiently known at the time when the notice of appeal is given."

25. The other members of the Court of Appeal agreed with this reasoning.

26. Our Court of Appeal followed Howard v. Environment Secretary in the Appeal Tribunal v. Peter A. de Kantzow and Another 1992 1 HKLR 55.

27. The other main case relied upon by Mr. Ismail was Freezinhot Bottle Co. Ltd. v. the Attorney General 1964 HKLR 676 where the Full Court considered a similar situation which arose out of a claim for compensation under Public Reclamation Ordinance Chapter 113 which was the predecessor of C. 127.

28. Although the wording of the relevant section was not the same as Section 12 Hogan C.J. said at p. 686.

"Section 5 of the present Ordinance takes away the rights therein mentioned and these are replaced by a claim for compensation. It would seem less than just to deprive the land holder of the benefit of that claim, because of a procedural error, unless the procedural requirement in question is imposed by language that is peremptory, precise and free from uncertainty. The change from the previous expression "the amount of compensation" to "an estimate of any loss" does not appear to strengthen the argument in favour of quantification, and, having regard to the variety of meansings which the dictionary gives for the word "estimate", I do not think that the word standing alone must necessarily imply a specific quantity or figure. But of course it does not stand alone in the context of the legislation now under consideration. The context does, I think, lend greater strength to the Crown's argument that a figure or quantity is implied but the context in the Bacon v. Grimsby Corporation?(2) case was very similar. The Corporation was concerned with the cost of repairs which they were requring a leaseholder to execute and, if anything, the ascertainment of the precise amount of these costs was probably more important to the Corporation than the appearance of a figure in the claimants' notification in the present instance, as the latter, in the nature of things, might well be a less accurate figure than that provided to the Corporation by its inspector. In that case Somervell, L.J., when considering the argument that an obligation to have regard "to the estimated cost" imposed an obligation to consider detailed estimates and not to be satisfied with an inspector's report that the repairs could be done "at a reasonable cost", refused to imply what he called such "a drastic provision" unless it was "absolutely necessary". If the words "estimated cost" in the context of the legislation then under consideration did not necessarily imply a specific figure or quanity, I do not think that one could, in fairness and in justice, hold that such a meaning is necessarily implied in the present legislation. Unless it is necessarily and clearly so implied, the absence of a figure cannot properly be held to have deprived the applicants of their right to claim compensation. The information given in the letter of the 9th October, which appears to be the operative document, as the subsequent letter of the 19th March was sent after the time prescribed, is very vague and general. It gives little information as to what precise injury to their private rights would e suffered by the claimants. Nevertheless, in the absence of a more specific requirement to provide a figure or quantity, I would not hold that the claimants had failed to satisfy the requirements of section 6(2) of the Ordinance and that, therefore, the Tribunal had no jurisdiction."

29. Mr. Cooney for the respondent argued that none of these cases impinged on the situation which arose in the present case.

30. The first matter to consider was whether in fact the Applicant had ever made an application for compensation under Chapter 127. I have already included BHP letter for the 2nd January 1992 earlier in this judgment. For the sake of completeness another letter in almost identical terms was sent to the District Lands Office on the 14th October 1992. The only difference of any significance to the earlier letter was the inclusion of an extra paragraph on the last page which read:

" Our Clients would still wish to reserve their position in regard to the alternative of being compensated financially for the loss of marine rights but we believe that if Government was able to see its way to meeting our Clients requirements in regard to the four main heads outlined above and the level of premium took due cognisance of the compensation that would otherwise have to be paid for the loss or marine rights, then there is every chance of reaching a negotiated settlement, acceptable to both sides."

31. I accept the validity of Mr. Cooney's submission that these letters cannot be read as being claims for compensation under Section 12(1). It is explicit from the contents of the letters that a claim for compensation under the ordinance is contemplated as a separate or alternative exercise.

32. The main thrust of the letters is a proposal that consideration be given to the modification of the terms of the Crown lease.

33. The context of the correspondence as a whole bears this out. There is nothing in the letters written by the District Office which is inconsistent with this.

34. Over and above this there is the evidence on affirmation of Ms. Daisy Wong where she affirms that she believed that this was what was being discussed with BHP. I can see no reason whatever to disbelieve this testimony.

35. Even if this is not accepted there is still the problem which is recognised by the Applicant that nowhere in the letters is any attempt made to state a figure which would be the amount of compensation that the Applicants would be prepared to accept in full and final satisfaction of any claims they may have under the ordinance. This does not seem to me to be an unimportant or just procedural matter.

36. The scheme of C. 127 is different to that of the Public Reclamation and Works Ordinance. In the former a duty is imposed upon the Director of Lands to attempt to settle claims with Claimants. Section 13 provides:

"13. Settlement of claim

(1) In relation to every reclamation the Director shall before the expiry of 6 months from the date when the written claim is delivered to him or, if he has requested further particulars under section 12(1), before the expiry of 6 months from the date when they are furnished under that section, consider whether or not the claimant is a person having an interest, right or easement in or over any foreshore and sea-bed that will be injuriously affected by the reclamation and shall serve notice on the claimant in writing stating that he ---

(a) admits the whole claim; or

(b) rejects the whole claim; or

(c) admits a specified part and rejects the remainder, and shall where he rejects the whole claim, or admits a specified part and rejects the remainder, as the case may be, give an adequate statement of his reasons for the rejection.

(2) If the Director admits the whole claim, or admits a specified part and rejects the remainder, he may agree with the claimant as to the amount of compensation to be paid to the claimant in full and final settlement of the whole claim or a specified part, as the case may be.

(3) Where ---

(a) the Director rejects the claim in whole or in part; or

(b) after the expiry of 7 months from the date when the written claim is delivered to the Director or, if he has requested further particulars under section 12(1), after the expiry of 7 months from the date when they are furnished under that section, the Director and the claimant do not agree as to the amount of compensation, the Director or the claimant may refer the claim to the Lands Tribunal to determine in accordance with this Ordinance and the Lands Tribunal Ordinance (Cap. 17), the amount of compensation to be paid.

(4) In determining a claim referred to it under subsection (3) in respect of a reclamation, the Lands Tribunal shall ---

(a) hear any evidence which the Director or the claimant may wish to tender and, if so requested, hear counsel or a solicitor on behalf of the party making the request; and

(b) determine the amount of compensation payable by the Government to the claimant in respect of any interest, right or easement of the claimant in or over any foreshore or sea-bed injuriously affected by the reclamation in full and final settlement of the claim.

(5) Notice of a reference under subsection (3) shall be served by the Director or the claimant, as the case may be, on the other party to the proceedings, before the expiry of 7 days from the date when it is referred.

(6) A claim shall not be referred to the Lands Tribunal under subsection (3), unless it is referred before the expiry of 1 year from the date of the notice served under subsection (1) or within such longer period as the Lands Tribunal may in any case allow, but the total period for the purposes of this subsection shall not exceed 6 years from that date."

37. There are no such provisions contained in the predecessor ordinance. This is a matter of some importance. Unless Section 12(1) is duly complied with the Director will have no material before him to enable him to discharge his duties under Section 13. It is not simply a matter of inserting a figure and stating that this amount should be payable. It is necessary for the claimant to demonstrate how the amount is made up. If insufficient supporting material is forthcoming the Director can seek what amounts to further and better particulars. If however no material is given in the claim there is insufficient opportunity for the Director to even seek this.

38. There can be no doubt that any claim which is made must be very much more specific than the contents of the 2 letters relied upon by the Applicant. It will be noted from the Lands Tribunal Rules that it is envisaged that Form 9 should be accompanied by the information furnished to comply with Section 12(1). It is this information which would have to be considered by the Tribunal if the attempts made by the parties to settle the matter under Section 13 are unavailing.

39. There is a further reason why these 2 letters cannot be regarded as being claims under Section 12(1). Both letters were sent prior to the 20th November 1992 the date of the Gazette Notification that the reclamation would be authorised. Prior to that date the Applicants had no claim as their rights had not yet been extinguished.

40. I do not think that the Applicant can derive any comfort from the fact that the Director was prepared to consider OMC's claim for compensation at the same time as an application to modify the terms of their Crown lease. The important distinguishing feature between the 2 cases was that when the Director was considering OMC's case they had lodged a claim pursuant to Section 12(1). The Director accordingly had something to set off against the imposition of a premium for the modification of the Crown lease.

41. Mr. Ismail refereed to paragraphs 24 and 25 of the grounds in support of the Application.

"24. If, contrary to the Applicant's contention, section 12 contained a mandatory requirement that the claim must state a sum of money which the Applicant is prepared to accept in full and final settlement, the Applicant contends that such requirement was waived by Government, or alternatively, that Government is estopped from relying on such requirement by reason of the following facts and matters:

(a) the Government continued to entertain the Applicant's claim as a claim for compensation by way of a modification of the Crown Lease and made requests for information, to which the Applicant complied,

(b) notwithstanding the fact that Government was fully aware of the Applicant's interests and intention to pursue a claim for monetary compensation, the Government stood by and refrained from notifying the Applicant of the fact that, in the event that it refused to grant a modification of the Crown Lease, it would not treat the written claims as claims for monetary compensation unless the Applicant stated the amount of money which the Applicant was prepared to accept in full and final settlement of its claim,

(c) the failure to state the amount of money was, in the circumstances, a mere technicality which Government should be taken to have waived,

(d) in the circumstances, it is inequitable and would be inconsistent with good administration for the Government to refuse to give the Appellant any compensation (whether by way of modification of the Crown Lease or by way of monetary compensation) on the ground that the Applicant failed to state the amount of money it would be prepared to accept in its claim.

25. In administrative law, estoppel arises to prevent public authorities from relying on technicalities. Wade, Administrative Law, p. 234 states: 'Estoppels have, however, been allowed to operate against public authorities in minor matters of formality, where no question of ultra vires arises. In one case [Wells v Minister of Housing and Local Government [1967] 1 WLR 1000 at 1007], Lord Denning MR said :

"Now I know that a public authority cannot be estopped from doing its public duty, but I do think it can be estopped from relying on technicalities." "

42. I do not think that these grounds can be substantiated. As I have stated earlier I accept that Ms. Daisy Wong did consider the correspondence on the basis exclusively that an application was being made for the modification of the terms of the Crown lease. I have no doubt that the functions exercisable by the Director when he considers a claim for compensation are quite different to those he considers when deciding whether or not to countenance a modification of a Crown lease. In the former case he is exercising a public law function whereas in the latter case the rights are governed by private rights.

43. I accept as correct the commentary at p. 275 of the 7th Edition of Administrative Law by Sir William Wade Clarendon Press Oxford:

"No power to dispense

Where something more than mere procedure or formality is in question, a public authority cannot exercise a dispensing power by waiving compliance with the law. For this would amount to an unauthorised power of legislation. There is therefore no power for a local authority to waive compliance with its binding byelaws;nor is any such power possessed by the minister with whose consent the byelaws are made.Still less is there any power to grant dispensations from the ordinary law, e.g. as to obstruction of the highway."

44. The Director had no power to waive the irregularity which had occurred. Also I do not consider that there can be any question of the doctrine of estoppel having any application because if no claim was made for compensation none of the acts of the District Lands Office which have been referred to could possibly amount to an estoppel.

45. There is one further matter which needs to be referred to. On the material which was before me I have no reason to believe that any of the officers in the District Land Office have been obstructive or unhelpful. I do not believe that they were failing in their duties in any way or that they were aware that the Applicant's claim was on hazard of becoming time barred.

46. For the reasons I have given this application must be dismissed. I will hear the parties on costs.

Representation:

Mr. Anthony Ismail (Kao Lee & Yip) for Applicant.

Mr. N.J. Cooney, S.C.C. (AG's Chambers) for Respondent.