Read the full judgment text of HCMP 001466/1982 on BabelCite. This High Court CFI judgment was delivered on 5 February 1983 before Liu J.
Administrative and planning law – Buildings Ordinance (Cap. 123) – section 42 permit – modification and exemption of statutory requirements – form 30 permit granted in 1973 as incentive for providing public passage through proposed building – building works in 1973 approved plans never executed – 1981 submission of new building plans seeking to preserve 1973 concessions for canopies, site coverage and plot ratio – whether concessions inseparable from 1973 approved plans – construction of permit and conditions – Building (Planning) Regulations Reg. 20 and 21 – section 31 Buildings Ordinance – whether 1974 Agreement supports free-standing subsistence of 1973 permit – plaintiffs sought declarations that 1973 permit and 1974 Agreement remained valid, subsisting and enforceable – Held: concessions so granted were inseparable from the approved plans to which the permit expressly or by implication related, and the owners were not entitled to preserve or take advantage of such concessions for newly submitted building plans – 1973 permit granted 'in respect of proposed building works' and subject to conditions under s.42(6) – condition (a) required works to be carried out in accordance with 1973 approved plans – breach of conditions would render permit invalid – condition (b) referred to 'the building' not 'any building' – condition (d) tied consent for commencement exclusively to 1973 approved building works – 1974 Agreement is offshoot of 1973 permit and not operative before completion of proposed building in accordance with 1973 approved plans – clauses 2(v) and 2(vi) referable only to 1973 public passage – clause 4(c) presupposes completed building and contemplates fresh deed or agreement – 1973 permit and 1973 approval in effect dead letters – prayers for declarations refused – originating summons dismissed with costs to defendant.
Legal issues: Whether concessions granted by a s.42 Buildings Ordinance permit can be preserved for newly submitted building plans · Effect of the 1974 Agreement on the subsistence of the 1973 permit concessions
Outcome: Originating summons dismissed with costs to the defendant. Declarations sought in paragraphs (1) and (2) of the originating summons refused. Neither prayer in paragraphs (3) and (4) acceded to.