Groton Investment Ltd and Another v. Attorney General
Read the full judgment text of HCMP 1466/1982 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.
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HCMP001466/1982 Grant of exemption from and/or modification of statutory requirements by a permit issued under S.42 of tine Buildings Ordinance --- Held: The 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 the purpose of newly submitted building plans. IN THE HIGH COURT OF JUSTICE MISCELLANEOUS PROCEEDING NO. 1466 of 1982 ______
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_________ Coram: Hon. Liu J. Date: 5 February 1983 ___________ JUDGMENT ___________ 1. The plaintiff companies are the present owners of respective parcels of land in a vacant site bounded in the north by the Connaught Road Central and the south by Des voeux Road Central. The predecessors in-title of the present owners were desirous of jointly developing the said site sometime in 1971. Proposed building plans accordingly submitted in 1971 were approved on 7th July 1973 under B.O.O. Ref. No. 2/2401/71. 2. Government was in the course or contemplation of implementing a foot-bridge system along the waterfront in Connaught Road Central. The possibility of constructing a foot-bridge system along Des voeux Road Central was under study. Negotiation was conducted between the plaintiffs' predecessors and the Government with a view to providing a right of public passage through the building proposed to be erected on the said site. Such public passage covering an area of some 228.85 sq. m. was to be provided in the upper ground floor and first floor of the said proposed building. This public passage could conveniently be incorporated into one or both of the foot-bridge systems contemplated or under consideration, but it certainly could function independently in serving as well the proposed building as the general public. In the prevailing circumstances, there was no real compulsion for synchronizing the construction of the waterfront foot-bridge system, the said public passage and the foot-bridge system along Des voeux Road Central then contemplated. Hence, no time for completion was specified or otherwise stipulated. It is, perhaps, not impertinent to mention in passing that the waterfront foot-bridge system was completed by Government only as late as June 1981. I will return to the construction of and the concept of linking up with the Des voeux Road Central foot-bridge system. 3. As an incentive for providing the said public passage in the proposed building on the said site, Government was prepared to grant to the plaintiffs' predecessors-in-title concessions in terms of extra canopies and excess plot ratio and site coverage, which would in effect allow a larger building volume. In order to implement these concessions, exemptions from and/or modifications of statutory requirements would have to be granted by a Form 30 permit under section 42 of the Buildings Ordinance. A Form 30 permit should be sought on a Form 29 application to which no reference was made in these proceedings, and I assume that Form 29 is not relevant. 4. A Form 30 permit was granted on 7th July 1973, on the force of which the said proposed building plans submitted in 1971 under B.O.O. Ref. No. 2/2401/71 were approved. The permit granted modification of and/or exemption from section 31 of the Buildings Ordinance and Regulations 20 and 21 of the Building (Planning) Regulations to permit extra projections and excess site coverage and plot ratio. As expressly stated in the permit, such modification and exemption were granted "in respect of proposed building works" to be constructed on the said site. The permit was also issued on the conditions set out in paragraph 2 thereof which reads as follows:
An agreement was accordingly signed in 1974 and duly registered against the said site in the Land Office. 5. The plaintiffs' predecessors and the plaintiffs did not bring to fruition the proposed building works in the 1973 approved plans. Without any stipulation as to time, Government had also not urged the plaintiff's predecessors-in-title or the plaintiffs to implement the construction of the said public passage. As mentioned earlier, the Government's own waterfront foot-bridge system was only completed in June 1981. 6. In December 1981, new proposed building plans containing a skeleton of the proposed building as approved in 1973 with additional installations required by subsequent regulations, such as fire-sprinklers etc. were submitted by the plaintiffs to the Building Authority. The 1981 submission was disapproved on 5th January 1982. For the purpose of the present proceedings, suffice it to say that the rejection was brought about by the attempted incorporation of the advantage gained by the concessions given in 1973 for canopies projection, excess site coverage and plot ratio. 7. Counsel for the plaintiffs argued that the 1973 permit was for modification and exemption of specific items of works which were not inherently linked to the 1973 approved plans or any of the foot-bridge systems then under construction or consideration. In addition, as counsel submitted, there was no time limit set for the implementation of such works, and these concessions could be incorporated into and taken advantage of by any erection on the said site at any future time. Counsel pressed upon this court that the works were merely intended to be identified by the specifications in the 1973 approved plans and had never become an integral part of these approved plans or their specifications. Reference was made to the apparent subsistence of the 1973 permit, the 1974 Agreement signed pursuant thereto and the 1973 approved plans, in particular the provision in the 1974 Agreement for the reconstruction of the same or a similar public passage. From these counsel sought to derive support for his proposition that the modification and exemption, though granted in 1973, were concessions made in respect to the enumerated categories of works unattached to any one set of approved plans. 8. In the 1973 permit, the exemption and modification were granted "in respect of proposed building works" on the said site. Even in the absence of Form 29 and any other correlated documents, it seems reasonably clear that the proposed building works in respect of which modification and exemption were granted must be and be confined to those particular works contained in the 1973 approved plans and no others. 9. But for the conditions in paragraph 2 of the 1973 permit, the suggested interpretation might not have been shorn of all its attractions. The permit granted in 1973 was explicitly made "subject to" conditions. Under section 42(6) of the Buildings Ordinance, any breach of or failure to perform any condition attached to a modification or exemption would render the same invalid. These conditions must now be more closely examined: 10. Condition (a) requires "the work to be carried out in accordance with the plans approved on 7th July 1973 under B.O.O. Ref. No. 2/2401/71". The 1973 permit would not therefore become effective unless the 1973 approved plans are executed. Condition (a) would be breached if other works are attempted, and thereupon the 1973 permit would cease to be valid. Works, though identical, approved in a later submission cannot be equated with works earlier approved on a different application, submitted at a different time considered under a different B.O.O. reference number and subject to a different Form 12 approval. It would be unreal seeking to postulate that the validity of this 1973 permit could be sustained by the execution of any other approved works, though identical in every respect with those approved in 1973. 11. Condition (b) requires the building owner to provide "a right of public passage through the building". The parties could have chosen the words "any building" instead of "the building" in respect of which the proposed works were approved under B.O.O. Ref. No. 2/2401/71 in 1973 if they had intended, as counsel submitted, a degree of perpetuity. 12. Condition (d) stipulates that no consent for commencement of building works would be given before the signing of a "suitable agreement with the Hong Kong Government". Such consent was exclusively tied to the buildings works approved in 1973. The strong inference is that the subject matter of the 1973 permit could be no other building works than those proposed and approved in 1973. 13. It was further contented on behalf of the plaintiffs that in proper sequence of time, the plans submitted in 1971 could not have been considered and approved on 7th July 1973 unless the concessions under the permit had by then been granted. Therefore, it was sought to be argued that the validity of what had come into being prior to the 1973 approval could not possibly be dependent on the plans thereby approved. What must never be forgotten is the fact that the 1973 permit was granted subject to conditions which were expressly made inseparable from the proposed building works and specifications contained in the 1973 approved plans. This originating summons falls to be decided, in my view, on the construction of the permit in particular the terms therein contained, subject to which it was issued. 14. Before I come to the 1974 Agreement, paragraph 2(c) of the permit must not be ignored. It stipulated for an agreement to be entered into for a specific purpose, and that was "to define more accurately the rights and responsibilities associated with the public passage". I would emphasize the words "associated with". No rights or responsibilities could have been precisely delineated except in association with a perceptible design such as that in the public passage to be provided in the proposed building approved in 1973 under B.O.O. Ref. No. 2/2401/71. Thus, the agreement envisaged was not one to expand the concessions granted or obligations created by the 1973 permit. We really need not go beyond the four corners of the 1973 permit and embark on a thankless examination of the provisions of the 1974 Agreement. 15. However, even the relevant provisions of the 1974 Agreement themselves can offer the plaintiffs little comfort: 16. Clause 2(v)refers to repair and reinstatement. Both these words are ordinarily used in contrast with "rebuild" or "replace". "Repair" requires no elaboration. The word "reinstate" generally applies to property which is damaged, and the word "replace" or "rebuild" to that which is destroyed. Clause 2(v) is therefore referable only to the agreed passage way in the 1973 approved plans. Clause 2(v) is consistent with paragraph 2(b) of the 1973 permit which stipulated for the provision of the public passage "for the life of the building", and its paragraph 2(c) did not envisage any enlargement of the 1973 permit by the agreement to be entered into. 17. Clause 2(vi) enabled the Crown to enter the "said -area" which, by reference to what appears to be an incomplete recital (iii), must mean the same public passage in the 1973 approved plans. 18. Finally, I pass then to consider clause 4(c) of the 1974 Agreement, which appears to have taken the parties beyond the purview of the 1973 permit. It would be more convenient to set out clause 4(c) in full:
The word "rights" should read "right" and (iii) is an obviously wrong reference for "(iv)". 19. Clause 4(c) makes provisions for the eventuality of the owners wishing to demolish and rebuild. It presupposes due execution of the 1973 approved plans and completion of the then proposed building. It is to be observed: First, that the right of passage to be made available to the public will be, in dimensions and management, regranted in accordance with or similar to the specifications in the 1973 permit as incorporated into the 1973 approved plans, and it will unlikely he a restoration of that very "public passage" previously sanctioned to be built --- The proposed building in the 1973 approved plans, if duly constructed and completed, will have been demolished and replaced, as clause 4(c) speaks in terms of a new building; secondly that the benefits to be enjoyed by the owners would then be the same or very nearly the same in scope and range, but they will not be expected to be, for the above reasons, the very benefits under the 1973 permit; and thirdly that this 1974 Agreement will itself finally come to an end and be replaced by a new deed or agreement for a fresh relationship. 20. The 1973 permit called for the signing of an agreement within a very narrow compass. Clause 4(c) has seemingly transgressed the original bounds of consensus. The explanation lies in the spirit of its provisions which pave the way to a new but comparable relationship between the owners and the Crown. It will not be an adherence to any current rights and responsibilities but rather an intended creation of the same or similar benefits and obligations to be regulated by a new agreement. Clause 4(c) refers to a new public passage same as or similar to the one in the 1973 permit, and the new building will entail the grant of a new permit unless clause 4(c) is intended or permitted to serve as such. The new passage would definitely require a new approval. The 1973 permit and 1973 approval would not be applicable. To that extent, clause 4(c) may perhaps be said, in reality, not to have stared at the 1973 permit in glaring contradiction. 21. Clause 4(c) would only spring into operation in events occurring after due completion of the proposed building in the 1973 approved plans. The owners are not obliged or expected to rebuild any public passage if only for the fact that there is or will be none to be replaced. 22. In conclusion, I take the view that no inference may be drawn from clause 4(c) that the 1973 permit is a free standing document capable of surviving the stale 1973 approved plans. 23. In my judgment, independent of or in conjunction with the 1974 Agreement, the permit does not permit the plaintiffs to take advantage of the concessions other than under the 1973 approved plans. 24. The rejection of the plaintiffs' proposed new plans submitted in December 1981 has been made the subject matter of a pending appeal, and these proceedings were brought for the adjudication and determination of questions of law. Neither of the prayers in paragraphs (3) and (4) of the originating summons should, on my understanding of the documents, be acceded to. The prayers in paragraph (1) and paragraph (2) of the originating summons relate to declarations that the modification and exemption granted by the 1973 permit are still valid and subsisting and that the 1974 Agreement made the pursuant to the 1973 permit is likewise valid, subsisting and also enforceable. It is common ground that neither the permit nor the Agreement has been disavowed, but the defendant denies any enforceability. The Building Authority has indicated that after a lapse of over 2 years, his power under section 16(3)(d) of the Buildings Ordinance will, if necessary, be invoked and consent to the commencement of the 1973 approved building works withheld. The validity of the 1973 permit would ultimately depend on the implementation of the approved proposed plans in 1973. The right to the concessions is defeasible once it is sought to be acquired or enjoyed. Thus, the 1973 permit and the 1973 approval are, in effect, each a dead letter. The 1974 Agreement is an offshoot of the 1973 permit or will otherwise not become operative before the completion of the proposed building in accordance with the 1973 approved plans. For these reasons, the declarations sought in paragraphs (1) and (2) of the originating summons cannot and should not be granted. These proceedings are therefore to stand dismissed with costs to the defendant.
Representation: Mr. Denis Chang Q.C. with Miss Maria Yuen instructed by Messrs. Ronald Wong & Co. for the Plaintiffs. Mr. Graham, Crown Solicitor for the Defendant. |